REPRODUCTIVE HEALTH DIGEST (10/24/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest goes through reproductive rights litigation developments out of Tennessee, Texas, Florida, and Washington, ballot initiative updates as election day looms closer, and developments in health equity policy, research, and politics. Please read on to the end for the news that you need to know. 

If you are interested in learning more, join L4GG’s Reproductive Justice Staff Attorney Alyssa Morrison, Professor Ederlina Co, and Senior Staff Attorney for the ACLU of Southern California Minouche Kandel for a free webinar discussing recent developments in a post-Roe legal landscape. You can register for that here. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s must-read comes from the Intercept’s reporting on drug-sniffing dogs intercepting abortion pills being sent through the mail in Mississippi. With the rise of abortion bans, abortion seekers, particularly those in ban states and rural areas, increasingly rely on medication abortion, telemedicine, and self-managed abortion to access care. The use of narcotic-detection dogs to ensnare those sending or receiving abortion pills by mail presents a dystopian view of what a future of increased pregnancy surveillance would look like. 

Legislation & Litigation:

• Tennessee’s Abortion Ban:  The Tennessee Chancery Court in Davidson County ruled last week that the life or health exception to the state’s total abortion ban lacks clarity and must encompass certain specific conditions. The court found that providers cannot be disciplined for performing an abortion in cases of preterm premature rupture of the membranes (PPROM), dilation of the cervix prior to viability, and fatal fetal diagnoses that severely threaten the pregnant person’s life or health. The court stopped short of issuing a broad order permitting doctors to perform emergency abortions in accordance with their good faith medical judgment. 

• Florida Battles over Abortion Ballot Measure: Floridians Protecting Freedom, the group behind the push for Florida’s abortion rights ballot measure, is fighting back against attempts by the State to defeat the amendment. Led by Florida Governor Ron DeSantis, Florida’s Health Department issued cease-and-desist letters to local news channels earlier this month threatening prosecution if they continued to air an ad in support of Amendment 4. Floridians Protecting Freedom filed a lawsuit arguing that the state’s actions are a clear First Amendment violation. In a strongly worded order, federal Judge Mark E. Walker agreed, condemning the state’s actions as political censorship and writing “[t]o keep it simple for the State of Florida: it's the First Amendment, stupid.” Notably, the former general counsel of the Florida Health Department resigned a week after the letters were sent, stating that “a man is nothing without his conscience.” 

  On Tuesday, lawyers for the Florida Department of Health filed the state’s opposition to Floridians Protecting Freedom’s request for a temporary injunction, arguing that the group’s ad contains false factual information and is not protected by the First Amendment. 

• Two Conflicting Cases about Access to Mifepristone: Washington Attorney General Bob Ferguson and the attorneys general of 18 other states have filed a motion for summary judgment in support of access to mifepristone. They are urging a federal judge to rule without a trial that the FDA’s restrictions on the use of mifepristone for medication abortions are unlawful. In their motion, they point to decades of evidence and scientific consensus about the safety and efficacy of the drug and argue that the current restrictions are unnecessary and unsupported by credible evidence. 

  While Washington, joined by a coalition of abortion-supportive states, urges the judiciary to increase access to mifepristone, the states of Kansas, Missouri, and Idaho are attempting to revive the Alliance for Hippocratic Medicine’s legal efforts to restrict access to the drug. In a proposed amended complaint, filed in front of Judge Matthew Kacsmaryk in the Northern District of Texas, Amarillo Division, the three states ask the Court to, among other things, reinstate in-person dispensing requirements and roll back use of the drug from 10 weeks to 7 weeks gestational age. The states argue that they have standing where the previous plaintiffs did not because access to medication abortion frustrates state abortion bans and law enforcement efforts. 

• Texas Man Drops Wrongful Death Lawsuit Against Ex-Wife’s Friends: Texas man Marcus Silva, who sued his ex-wife’s friends for helping her obtain an abortion, has dropped his lawsuit, with no resolution in either party’s favor. The lawsuit was brought with the help of anti-abortion attorney Jonathan Mitchell, the architect of Texas’s unique abortion ‘bounty hunter’ law. Silva alleged that his ex-wife’s two friends had participated in a conspiracy to bring about the wrongful death of “Baby Boy Silva” by helping her obtain abortion medication to terminate her pregnancy.  He argued that self-managing an abortion constitutes murder under Texas law. The two friends countersued Silva, alleging that he knew about the pills and did nothing to stop the abortion, and his wife purportedly produced text messages showing him using the threat of the lawsuit as a bargaining tool to get back together. 

  Although the case was nearing trial, both sides have now dropped their suits. Despite the outcome, these kinds of cases are deeply dangerous; they allow abusers to weaponize state law to control and intimidate their partners. Attorneys like Mitchell have built entire careers out of bringing lawsuits that sow fear and confusion with the purpose of deterring individuals from accessing care.

Ballot Initiatives:

• Fundraising for Abortion Ballot Measures: Data shows that abortion-rights ballot measures nationwide have raised almost 8 times as much as anti-abortion groups. However, whether this spending will translate into success on election day remains to be seen. Uncertainty is particularly high in Florida, where a 60% passage rate is required for the amendment to succeed. With only weeks left until election day, it is more important than ever that we collectively work to educate, advocate, and organize in our communities about the importance of access to comprehensive reproductive health care. 

• Florida Department of Health Interferes with Ballot Initiative: The Florida Department of Health has sent a cease and desist letter to a local TV station over an ad promoting the abortion rights ballot initiative that will appear before voters in November. The ad depicts a Florida woman telling the story of how she was diagnosed with a brain tumor while pregnant and needed an abortion in order to save her life. The state’s cease and desist letter threatens criminal charges and argues that the ad is misleading in its implication that the state’s abortion ban places pregnant people’s lives and health in jeopardy. This latest attempt by the Florida government to block Amendment 4 comes on the heels of reporting about police officers going to people’s homes to inquire about the validity of their signatures in favor of the amendment petition.

Trend & Policy Watch:

• North Carolina Election: Abortion rights advocates in North Carolina are hopeful that this year’s election will yield down-ballot votes for democratic candidates supportive of abortion rights. Currently, Republicans hold a supermajority capable of overriding Democratic Governor Roy Cooper’s veto. If the makeup of the legislature remains the same, it is likely that more abortion restrictions will be passed into law during next year’s legislative session. 

• Maternal Healthcare and Extreme Heat: Rising heat levels induced by climate change are worsening maternal health conditions and outcomes in the U.S., particularly for black women. Extreme heat increases the risks of pregnancy complications, including hypertension and cardiovascular conditions, and maternal mortality. As climate change worsens, it will compound pre-existing inequities in related areas like public health, a reality that lawmakers attempting to craft solutions must contend with.  

• Idaho and Gender-Affirming Care: Idaho Attorney General Raul Labrador has announced that he is investigating the American Academy of Pediatricians in relation to gender-affirming care for minors. In the letter, he argues that providers should not be permitted to recommend gender-affirming care to the parents of trans children, arguing that such care amounts to “medical experimentation on children.” This position contradicts vast medical consensus demonstrating the safety and efficacy of gender-affirming care for gender-diverse individuals. 

• Military Readiness and Anti-LGBTQ+ Policies: House Democrats argue that provisions relating to LGBTQ+ service members and their dependents should be removed from Congress’s annual defense bill. The provisions include restrictions on gender-affirming care, pride flags, drag performances, and educational materials that depict gender non-conforming individuals. Opponents of these provisions argue that they are discriminatory, entirely unnecessary, and detract from military readiness and retention by forcing service members to worry about their health, their families, and their safety rather than focusing on their jobs. 

• Anti-Abortion Researchers Sue Over Retraction: Anti-abortion researchers whose studies were heavily relied upon in the lawsuit attempting to revoke the FDA’s approval of mifepristone have sued academic publisher Sage for retracting several of the studies. The studies purported to show that mifepristone is not safe for use in medication abortion. However, Sage based its retractions on discovery of serious methodological flaws and undisclosed conflicts of interest, such that the authors’ conclusions were rendered unreliable. The researchers allege that they have suffered severe reputational damage as a result and ask Sage to come to the arbitration table and rescind the retractions. They are represented by Alliance Defending Freedom (the group behind the lawsuit challenging the FDA’s approval of mifepristone) and conservative law firm Consovoy McCarthy. 

• Texas OB-GYNs Considering Leaving the State: A new report from Manatt Health details how the state’s total abortion ban is impacting reproductive healthcare providers. A majority of OB-GYNs do not feel that they can provide the highest-quality care to pregnant patients under the current law, and 1 in 5 has considered leaving the state. Providers have been leaving ban states across the country, and medical students are less likely to matriculate to those states, worsening healthcare deserts and provider shortages. Research indicates that abortion bans are causing significant professional stress as doctors fear legal repercussions for providing standard care. 

• U.S. Supreme Court’s New Term:The U.S. Supreme Court began its term this week. For a rundown of important cases before the Court in the coming months, including a case that will determine the future of gender-affirming care and the reach of Dobbs, read here.

REPRODUCTIVE HEALTH DIGEST (10/10/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest details litigation developments in Georgia, California, Texas, and Guam, as well as the reclassification of mifepristone and misoprostol as controlled substances in Louisiana. We also walk through policy and political developments in the reproductive health landscape. Please read on to the end for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

Reproductive rights and justice are deeply intersectional issues, impacting and being impacted by nearly all other issue areas. At present, we are witnessing how the effects of climate change are worsening an already fraught healthcare landscape in the South, as Florida, North Carolina, and Georgia grapple with the effects of Hurricane Helene and Hurricane Milton. You can read about how these extreme weather events are impacting access to care, here. 

Legislation & Litigation:

• Georgia Abortion Ban Struck and Reinstated: In the last two weeks, Georgia’s 6-week abortion ban was struck down by the Fulton County Superior Court and then swiftly reinstated by the state supreme court. 
  
  On September 30th, Fulton County Superior Court Judge Robert McBurney issued an order striking Georgia’s 6-week abortion ban as unconstitutional, briefly allowing abortions to resume until about 22 weeks gestational age. In his opinion, Judge McBurney held that women have a right to pre-viability abortion, writing that “the liberty of privacy means that [the pregnant person] alone should choose whether to serve as human incubators for the five months leading up to viability[;] it is not for a legislator, a judge, or a Commander from the Handmaid’s tale to tell [them] what to do with their bodies during this period.” He also criticized an originalist approach to interpreting the state constitution that inherently excludes women and people of color, explaining that “any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color.” 
  
  Although Judge McBurney’s opinion was a win for reproductive rights and allowed a brief respite for pregnant people in the state, it predictably was swiftly overturned by the Georgia Supreme Court. Georgia Attorney General Chris Carr immediately asked the state supreme court to place Judge McBurney’s decision on hold pending appeal, and on Monday the high court granted that request. Georgia providers have resumed practicing under the 6-week ban. 

• California Sues Hospital for Failing to Provide Care: California Attorney General Rob Bonta filed a lawsuit against a Catholic hospital challenging their alleged refusal to provide emergency abortion care to a woman whose water broke at 14 weeks. Although her pregnancy was nonviable, and the doctors confirmed that the twin fetuses would not survive, the hospital would not provide care based on an apparent policy of not performing abortions when there is detectable fetal cardiac activity.  The woman was sent away with a bucket of towels for the car ride, and she subsequently hemorrhaged before receiving care at another hospital in the area. A.G. Bonta alleges that the hospital’s actions amount to discrimination against pregnant patients and violate state law requiring hospitals to provide emergency care. He is seeking a court order requiring the hospital to cease denying medically necessary abortions. 
  
  Although several individual women have filed lawsuits against hospitals based on their failure to provide emergency care, this case appears to be the first time that a state has taken a hospital to court. It is also a reminder that even in states like California where abortion is legal and protected, dangerous barriers to accessing care still exist.  

• Louisiana Classifies Abortion Medications as Controlled Substances: Louisiana’s classification of common medication abortion drugs mifepristone and misoprostol as controlled substances took effect on October 1st. Doctors have warned about the consequences for patient care of classifying these substances in the same category as drugs like Valium and Xanax. In many cases, drugs like misoprostol need to be immediately available for miscarriage care or to treat acute conditions like postpartum hemorrhage. However, once a medication is classified as a controlled substance, it must be locked away in a specific location, requiring specific procedures for access, and a distinct patient order. In response to the reclassification, doctors have described running drills to see how long it will now take to get the medications to patients who need them. 
  
  Abortion is already banned in Louisiana, and these drugs do not carry a risk of abuse or dependency; their classification is a purely political move designed to make easier the criminalization of abortion seekers and those who might help them. Although anti-abortion activists tout these kinds of policies as pro-life, the medical reality is that locking these drugs away makes pregnant patients less safe in a clinical setting and erects unnecessary barriers to standard reproductive health care. 

• Supreme Court Allows Texas to Block Emergency Abortions: The Supreme Court has declined to hear a Texas case about how federal requirements for emergency care intersect with the state’s total abortion ban. After the Dobbs decision overturned Roe, the Biden Administration issued guidance advising that hospitals must continue to provide emergency stabilizing care consistent with the Emergency Medical Treatment and Active Labor Act (EMTALA), including abortion care if that is what is medically indicated, regardless of state abortion bans. Texas responded by filing a lawsuit arguing that the Administration’s guidance was improper.  The lower courts agreed. The Fifth Circuit wrote that EMTALA does not govern the practice of medicine and does not require pregnancy termination. The Court went further by opining that EMTALA imposes “equal stabilization obligations” to both the mother and the fetus, putting doctors in the position of choosing whose care to prioritize while failing to understand the reality that fetal care depends on maternal care. 
  
  This case is extremely similar to Moyle v. United States, a case out of Idaho that the Supreme Court dismissed without considering the merits of the issue months ago. In declining to take the case out of Texas, the Court has once again passed on an opportunity to answer the urgent question of whether patients have a federal right to abortion in emergency life-endangering circumstances. The court’s failure to answer this question is an abdication of its duty and places the lives of pregnant people in ban states in jeopardy. 

• The Supreme Court Declines to Hear Abortion Case out of Guam: The U.S. Supreme Court has declined to hear a case aimed at overturning abortion rights in Guam. The case, brought by Attorney General Douglas Moylan, asked the Court to overturn a Guam Supreme Court ruling finding that a 1990 total abortion ban has been repealed by the Guam legislature. In other words, A.G. Moylan sought to reinstate the abortion ban, and the Supreme Court’s refusal to hear the case means that the 1990 abortion ban remains blocked. Guam attorney Anita Arriola responded with a statement that A.G. Moylan’s appeal to the Supreme Court was a “vain bid” to “further his own agenda at the expense of the people of Guam,” and that it demonstrated “how far he is willing to go to strip Guamamians of their rights and freedoms.” 

• Texas Attorney General Sues City of Austin:  Texas Attorney General Ken Paxton has brought a lawsuit against the city of Austin based on its budget allocation of $400,000 for supporting reproductive health by reimbursing individuals who are forced to travel out of state. Although traveling to obtain legal abortion care is entirely lawful, A.G. Paxton argues in the lawsuit that the funds are improper as they do not serve the public interest. Mayor Kirk Watson responded with a statement that “Ken Paxton is once again exploiting the great power of his office to attack and undermine the fundamental rights of women to try and score a few political points in the process.”
  

Ballot Initiatives:

• Fundraising for Abortion Ballot Measures: Data shows that abortion-rights ballot measures nationwide have raised almost 8 times as much as anti-abortion groups. However, whether this spending will translate into success on election day remains to be seen. Uncertainty is particularly high in Florida, where a 60% passage rate is required for the amendment to succeed. With only weeks left until election day, it is more important than ever that we collectively work to educate, advocate, and organize in our communities about the importance of access to comprehensive reproductive health care. 

• Florida Department of Health Interferes with Ballot Initiative: The Florida Department of Health has sent a cease and desist letter to a local TV station over an ad promoting the abortion rights ballot initiative that will appear before voters in November. The ad depicts a Florida woman telling the story of how she was diagnosed with a brain tumor while pregnant and needed an abortion in order to save her life. The state’s cease and desist letter threatens criminal charges and argues that the ad is misleading in its implication that the state’s abortion ban places pregnant people’s lives and health in jeopardy. This latest attempt by the Florida government to block Amendment 4 comes on the heels of reporting about police officers going to people’s homes to inquire about the validity of their signatures in favor of the amendment petition.

Trend & Policy Watch:

• North Carolina Election: Abortion rights advocates in North Carolina are hopeful that this year’s election will yield down-ballot votes for democratic candidates supportive of abortion rights. Currently, Republicans hold a supermajority capable of overriding Democratic Governor Roy Cooper’s veto. If the makeup of the legislature remains the same, it is likely that more abortion restrictions will be passed into law during next year’s legislative session. 

• Maternal Healthcare and Extreme Heat: Rising heat levels induced by climate change are worsening maternal health conditions and outcomes in the U.S., particularly for black women. Extreme heat increases the risks of pregnancy complications, including hypertension and cardiovascular conditions, and maternal mortality. As climate change worsens, it will compound pre-existing inequities in related areas like public health, a reality that lawmakers attempting to craft solutions must contend with.  

• Idaho and Gender-Affirming Care: Idaho Attorney General Raul Labrador has announced that he is investigating the American Academy of Pediatricians in relation to gender-affirming care for minors. In the letter, he argues that providers should not be permitted to recommend gender-affirming care to the parents of trans children, arguing that such care amounts to “medical experimentation on children.” This position contradicts vast medical consensus demonstrating the safety and efficacy of gender-affirming care for gender-diverse individuals. 

• Military Readiness and Anti-LGBTQ+ Policies: House Democrats argue that provisions relating to LGBTQ+ service members and their dependents should be removed from Congress’s annual defense bill. The provisions include restrictions on gender-affirming care, pride flags, drag performances, and educational materials that depict gender non-conforming individuals. Opponents of these provisions argue that they are discriminatory, entirely unnecessary, and detract from military readiness and retention by forcing service members to worry about their health, their families, and their safety rather than focusing on their jobs. 

• Anti-Abortion Researchers Sue Over Retraction: Anti-abortion researchers whose studies were heavily relied upon in the lawsuit attempting to revoke the FDA’s approval of mifepristone have sued academic publisher Sage for retracting several of the studies. The studies purported to show that mifepristone is not safe for use in medication abortion. However, Sage based its retractions on discovery of serious methodological flaws and undisclosed conflicts of interest, such that the authors’ conclusions were rendered unreliable. The researchers allege that they have suffered severe reputational damage as a result and ask Sage to come to the arbitration table and rescind the retractions. They are represented by Alliance Defending Freedom (the group behind the lawsuit challenging the FDA’s approval of mifepristone) and conservative law firm Consovoy McCarthy. 

• Texas OB-GYNs Considering Leaving the State: A new report from Manatt Health details how the state’s total abortion ban is impacting reproductive healthcare providers. A majority of OB-GYNs do not feel that they can provide the highest-quality care to pregnant patients under the current law, and 1 in 5 has considered leaving the state. Providers have been leaving ban states across the country, and medical students are less likely to matriculate to those states, worsening healthcare deserts and provider shortages. Research indicates that abortion bans are causing significant professional stress as doctors fear legal repercussions for providing standard care. 

• U.S. Supreme Court’s New Term:The U.S. Supreme Court began its term this week. For a rundown of important cases before the Court in the coming months, including a case that will determine the future of gender-affirming care and the reach of Dobbs, read here.

REPRODUCTIVE HEALTH DIGEST (9/26/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest begins by featuring the devastating recent reports from ProPublica about the deaths of two Georgia women as a result of the state’s abortion ban. We also discuss litigation outcomes in Arizona, North Dakota and Tennessee, developments with abortion ballot initiatives, and policy updates. Please read to the end for the news you need to know. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

Last week, ProPublica released two breaking stories of women who lost their lives to Georgia’s abortion ban. These women’s deaths were both entirely preventable had they received the care that they desperately needed and deserved. We remember them and recommit to fighting for full, accessible abortion access, in their names.

Amber Thurman died of complications related to sepsis after the hospital failed to provide her with a simple and standard procedure to remove retained fetal tissue after a legal medication abortion. She leaves behind a 6-year-old son. 

Candi Miller was a mother of three who suffered from a systemic illness that her doctors told her made pregnancy dangerous for her health. Miller sought to self-manage her abortion after becoming unexpectedly pregnant at 41, but when the abortion did not expel all of the fetal tissue, she did not go to the hospital for fear of Georgia’s laws. Without those laws, she would have received the simple treatment that she needed, and her children would still have their mother.

Unfortunately, we know that while these may be the first direct deaths reported post-Dobbs, they will certainly not be the last. Anti-abortion activists are already exploiting these women’s stories to push lies about the dangers of taking abortion pills, arguing that it was abortion, not abortion bans, that killed Candi and Amber. However, complications due to self-managed abortions are a known, infrequent risk that is always treatable with proper medical care. Further, D&Cs are a standard, safe and common treatment for both abortions and miscarriages, and we owe it to these women to tell the truth about their deaths: but for Georgia’s abortion ban, they would both be alive and with their families today. 

Amber and Candi’s lives mattered. Their families’ suffering matters. Their stories matter. We have an obligation to honor their memories by continuing to speak up and speak out to ensure that what happened to them can never happen again.

Legislation & Litigation:

• Arizona 1864 Abortion Ban Repealed: Arizona’s 1864 abortion ban has officially been repealed. The state’s supreme court issued a ruling earlier this year finding that the Civil War-era law, written before Arizona even had statehood, was an enforceable abortion ban. However, after some political maneuvering, legislators voted to repeal the law, with Governor Katie Hobbs signing the repeal bill. Abortion is currently legal until 15 weeks gestational age; however, In November, Arizonans will have the opportunity to vote on whether to enshrine abortion rights into the state’s constitution. 

• North Dakota Abortion Ban Repealed: As we reported on in our last Digest, North Dakota Judge Bruce Romanick issued a ruling striking down the state’s abortion ban as unconstitutional. Today, he signed an order officially repealing the ban. Shortly after the order was handed down, attorneys for the state filed a motion asking the court to allow the ban to remain in place until the state supreme court can hear the case. A hearing on that motion is set for October 10. 

• North Dakota and the Pregnant Workers Fairness Act: Two weeks after a North Dakota judge struck down the state’s abortion ban, federal Judge Daniel Traynor issued an order finding that over 8,000 Catholic employers are relieved from compliance with requirements under the Pregnant Workers Fairness Act to provide time off for IVF treatments and abortion. Judge Traynor ruled that the federal government cannot enforce those rules against the Catholic Benefits Association and the Catholic Diocese in Bismarck during the pendency of litigation. In the opinion, Judge Traynor found that the regulations likely infringed upon the Catholic employers’ freedom of religion. He employed openly religious language, writing that “[i]t is a precarious time for people of religious faith in America,” and describing the “dire assessment” that the current American climate  “has been described as a post-Christian age.” To be clear, the challenged rules would not require employers to pay for IVF or abortions or to even provide paid time off; it neutrally requires that employers accommodate time off for pregnancy-related conditions, which have been interpreted to include IVF and abortion. 

• Tennessee Abortion Trafficking Law Blocked:

  In a piece of good news out of the South, a federal judge has issued a preliminary injunction

  blocking Tennessee’s ‘abortion trafficking’ law, which went into effect earlier this summer. The law, which is written using broad imprecise language, criminalizes assisting a minor out of the state to obtain an abortion without the consent of their parent; the minor’s own consent to the abortion is not a defense to prosecution. In fact, the law still applies in cases where the minor’s parent is the one who impregnated them–allowing the perpetrator to pursue charges. Judge Aleta Trauger ruled on First Amendment overbreadth grounds, writing that the plaintiffs “do not just have a right to speak their message; they have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech—just freedom of a few speakers to address a silenced populace. The First Amendment guarantees more[.]” Tennessee’s law mirrors a nearly identical Idaho law that has also been temporarily blocked.
  

Ballot Initiatives:

• Nebraska: The Nebraska Supreme Court has ruled that both the state’s pro-choice ballot initiative and the anti-abortion initiative will appear before voters in November. Opponents of the pro-choice measure, which would enshrine pre-viability abortion rights, brought a lawsuit arguing that it violated the state’s requirement that each measure contain only one subject. They alleged that the measure contained three subjects: 1) abortion pre-viability; 2) abortion post-viability; and 3) women’s health. The court rejected this argument, writing that the “fact that the drafters…have made certain choices regarding the specific limits, parameters, and definitions does not mean that each such provision is a separate subject.” These kinds of last-minute legal arguments to invalidate ballot measures before November are happening in nearly every red state with abortion on the ballot. 

• Arizona Polling: A New York Times/Siena College poll now shows that 58% of state voters support the pro-choice ballot measure that will be on Arizona’s November ballot; Arizona requires only a simple majority for a measure to pass. 

• South Dakota: In South Dakota, a trial over the validity of a pro-choice ballot initiative will not happen until after the November election, at which point voters will have made their choice. The delay in trial appears to be due to a scheduling mixup with the court. If passed, the amendment would effectively codify the Roe trimester framework.

Trend & Policy Watch:

• 56% Rise in Texas Maternal Mortality: New research from the Gender Equity Policy Institute shows a shocking rise in maternal mortality in Texas following the state’s enactment of abortion bans. From 2019 to 2022, “the rate of maternal mortality cases in Texas rose by 56%, compared with just 11% nationwide during the same time period.” Although there was a national spike in maternal mortality during the COVID-19 pandemic, deaths in Texas continued to rise sharply, surpassing national averages, after the state passed SB8, its notorious pre-Dobbs heartbeat bill. Texas’ abortion ban means that more women are forced to remain pregnant, regardless of pre-existing or developing risks to their health. And, with the bans in place, and doctors leaving ban states en masse, pregnant people are less likely to seek and obtain maternal care. This increase in maternal mortality is accompanied by a rise in fetal and infant deaths, as pregnant people are forced to carry doomed pregnancies to term.

• Abortions Fell Nationwide After Florida Enacted Ban: Research from The Guttmacher Institute shows the nationwide impact of Florida’s 6-week abortion ban. Prior to the 6-week ban taking effect, abortion was legal in Florida until 15 weeks, making it a critical access point for abortion seekers in the South. However, following the 6-week law’s enforcement, the average number of abortions nationally fell by over 7%, with more than a third of that being directly correlated to Florida’s ban. In November’s election, Florida could revive access to abortion in the state and reopen a crucial option for pregnant Southerners if its abortion rights ballot measure passes.  The initiative requires 60% of the vote to pass into law. 

• Nevada and Medicare Funding for Abortion: Abortion is currently legal in Nevada until ‘viability;’ however, gestational limits are not the only barriers to accessing care. For many, the ability to pay for an abortion is an insurmountable obstacle. Following a favorable court ruling finding that the denial of coverage violated state equal protection laws, Nevada will now become the 18th state to allow Medicaid funds to be used for abortion care, supporting access for lower-income patients. This is a huge step forward for the bodily autonomy and self-determination of Nevadans.  

• Pregnancy Criminalization Post-Dobbs: A new report from Pregnancy Justice, an organization that tracks and fights pregnancy criminalization, found that in the first year after Dobbs, 210 pregnant people “faced criminal charges for conduct associated with pregnancy, abortion, pregnancy loss, or birth.” This is the highest number recorded in a single year. The majority of the cases occurred in states with fetal personhood laws on the books and involved substance use while pregnant, regardless of whether any actual evidence of harm to the fetus was present. However, several of the cases also involved the criminalization and investigation of miscarriages that happened outside of a medical setting–an incredibly common occurrence. In addition to opening the doors for states to pass abortion bans and restrictions, the Dobbs decision also appears to have empowered law enforcement and prosecutors to act more boldly in investigating and criminalizing pregnancy outcomes and conduct while pregnant. 

• Traveling for Abortion Care: For those trapped in abortion-ban states, traveling to obtain care can be a legally and logistically treacherous endeavor. Patients must navigate a complex web of legal restrictions and requirements, while coordinating travel, child care, time off work, and expenses. States are also attempting to restrict the right to travel to obtain lawful healthcare. Idaho and Tennessee have already passed “abortion trafficking” laws that criminalize helping a minor across state lines to obtain an abortion without parental consent (both of those laws are currently blocked by court orders). And, a number of Texas towns have enacted abortion travel bans that make it unlawful to use their roads to travel for abortion care. In practice, these Texas city ordinances, as well as state-level abortion trafficking laws for minors, are likely legally unenforceable, but the fear and intimidation are the point. 

• Congress and Emergency Abortion Care: This week, Senate Democrats attempted to advance a resolution federally guaranteeing the right to emergency medical care, including abortion, on the heels of reporting about the deadly consequences of abortion bans. However, Senator James Lankford of Oklahoma blocked the efforts, arguing that such a resolution is not necessary. The refusal to entertain legislation that merely protects abortion rights in medical emergencies is dramatically out of step with consistent data on Americans’ opinions about access to abortion. 

• Threats to IVF: Last week, Senate Republicans once again voted to block a bill that would have created federal protections for IVF. Although anti-abortion activists continue to insist that warnings about legal threats to fertility treatments and contraception are fear-mongering, the refusal to codify basic protections highlights the need for continued vigilance. 

• RHITES New Resource on Telehealth for Medication Abortion: The Reproductive Health Initiative for Telehealth Equity and Solutions (RHITES) and the National Health Law Program (NHeLP) have released a new map detailing state policies for telehealth medication abortion access for Medicaid enrollees. You can find that resource here.

REPRODUCTIVE HEALTH DIGEST (9/12/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest highlights several important reproductive health resources for providers, activists, and fellow reproductive rights advocates. We also discuss breaking news out of North Dakota, new and ongoing state and federal litigation impacting the accessibility of reproductive health care across the country, and updates on anti-democratic attacks against abortion rights ballot initiatives. Please read to the end for the news that you need to know.

This Week’s Must Read:

This week, rather than highlighting a ‘must-read,’ we are using this space to uplift key resources from our partners and colleagues in the fight for reproductive justice:

• RHITES Updated Map of State Policies Impacting the Provision of TMAB (Telehealth for Medication Abortion): The first resource that we are highlighting comes from our partners at the Reproductive Health Initiative for Telehealth Equity and Solutions (RHITES). Focusing on the intersection of reproductive rights and justice and telehealth, RHITES works to “bridge equity gaps and integrate equitable policy and advocacy strategies in reproductive telehealth solutions.”

  RHITES updated Map of State Policies Impacting the Provision of TMAB is a vital resource for tracking and understanding access to telehealth abortion at the state level. To learn more, join RHITES on September 19th for their webinar “Innovating Under Pressure: Leveraging Telehealth for Abortion Care in a Post-Dobbs World.” With panelists from across the reproductive healthcare space, the webinar will cover trends in TMAB provision, shield law protections, and leveraging telehealth to reach marginalized communities in restrictive environments. Register for the webinar here.  

• UCLA School of Law Center on Reproductive Health, Law, and Policy’s State Law Guide on Shield Laws for Reproductive Health and Gender-Affirming Health Care:  States across the country have passed shield laws in response to abortion and gender-affirming care bans. Although these shield laws have many similarities, they differ in exactly what they protect and how they purport to do so. This comprehensive guide provides critical shield law analysis, mapping which states have enacted them, how they each operate, and what they do and do not protect. 

• L4GG’s Policy Resource Hub for Reproductive Health: L4GG’s Policy Hub tracks abortion laws in every U.S. state and occupied territory, every single day, providing you with a free, reliable, and up-to-date source of truth on the state of reproductive rights. You can sign up for the Hub here.

Legislation & Litigation:

• Judge Strikes Down North Dakota’s Abortion Ban: On Thursday, North Dakota Judge Bruce Romanick issued a ruling striking down the state’s abortion ban. He found  that the ban unconstitutionally infringes “on a woman’s fundamental right to procreative autonomy” and is not narrowly tailored “to promote women’s health or to protect unborn human life.” His decision determined that North Dakotans have a fundamental right to abortion pre-viability. He also found that the law was unconstitutionally vague with respect to its exceptions. Although this is a huge win for abortion rights, Judge Romanick’s decision is certain to be appealed by the state. 

• Texas Sues Over HIPAA Protections for Reproductive Health Data: Texas Attorney General Ken Paxton has filed a lawsuit against the U.S. Department of Health and Human Services (HHS), challenging a new HIPAA rule aimed at protecting reproductive health care data. The rule, which is set to take effect on December 23rd, protects patient health information relating to lawfully provided reproductive health care from disclosure. It was promulgated by the Biden Administration in response to increased post-Dobbs threats of investigation and criminalization for patients forced to travel to other states to receive care. Paxton’s lawsuit argues that the new rule exceeds HHS’s authority and interferes with the state’s investigative abilities. The lawsuit similarly argues for the invalidation of a 2000 HIPAA privacy rule relating to the provision of patient information for purposes of government investigation more generally. 
  
  Abortion is currently banned in Texas. It merits reiterating that the HIPAA rules that Texas seeks to overturn only protect information related to lawful care. In other words, Attorney General Paxton’s lawsuit does not seek to vindicate the state’s ability to investigate unlawful activity, but rather to obtain information on legally obtained health care.. This kind of state-sponsored surveillance of individual medical decision making is chilling and should act as a reminder of the importance of continued advocacy for bodily autonomy without government interference. 

• Abortion And Birth Control Access in Alaska: Alaska Judge Josie Garton has struck down a state requirement that abortions be provided only by licensed physicians. In the case, Planned Parenthood argued, and Judge Garton agreed, that there is no medical justification for prohibiting advanced practice clinicians, including physician assistants and registered nurses, from providing certain common abortion services, including medication abortion. Judge Garton found that the restriction burdened patients’ access to care, particularly in a state with large rural areas where access to doctors can be limited. 
  
  As Judge Garton moved to improve reproductive health care in the state, Alaska’s Governor Mike Dunleavy vetoed a bipartisan bill that would have expanded Alaskans’ access to contraception. The bill would require insurers to cover up to a year’s worth of contraception at a time, reducing the need for frequent travel to a pharmacy and easing barriers for victims of domestic violence. In a letter regarding the veto, Governor Dunleavy stated without explanation his belief that the legislation was “bad policy.” 

• Title X Funding Restrictions in Oklahoma: The Supreme Court has allowed HHS to block Title X funding to Oklahoma because of the state’s refusal to comply with a requirement that it provide pregnant patients with comprehensive information about their options, including abortion. The 10th Circuit previously ruled that Oklahoma could satisfy its obligation by merely providing patients with a national hotline number that gives information about all pregnancy options. However, Oklahoma argues that even providing a general pregnancy options hotline is in conflict with its abortion ban. As a result of the state’s failure to comply, HHS will withhold those funds this year. 

• Abortion Restrictions Blocked in Ohio: Last Digest, we reported on an Ohio judge blocking certain medically unnecessary abortion restrictions in the state, including a 24-hour waiting period. A Hamilton County Judge has now granted a preliminary injunction blocking laws that prohibit advanced practice clinicians from providing medication abortion and interfering with the prescription of mifepristone consistent with medical evidence. The court found that these laws are likely unconstitutional under the newly passed Reproductive Freedom Amendment to Ohio’s Constitution. This process of unwinding state restrictions on abortion after the passage of a constitutional amendment will likely be repeated in any state that votes to enshrine abortion rights this November. 

• Gender-Affirming Care at the Supreme Court: As we have reported previously, gender-affirming care is currently before the Supreme Court in U.S. v. Skrmetti, with arguments likely to take place sometime in December. This is the first time that the Supreme Court has had the opportunity to directly consider the constitutionality of bans on gender-affirming care for minors, and the outcome of the case will impact laws passed in almost half of U.S. states. Dozens of conservative politicians have filed an amicus brief arguing in favor of the health care bans, while California Attorney General Rob Bonta has led a coalition of 20 states in opposing the restrictions. While this case sits before the Supreme Court, litigation over gender-affirming care bans continues in the lower courts. Last week, the 11th Circuit Court of Appeals ruled to allow Alabama to enforce its ban, clearing the way for other states in the Circuit, including Florida, to begin to enforce their own bans. Meanwhile, advocates in South Carolina have filed a lawsuit challenging that state’s ban. Although the text of the question presented in Skrmetti is limited to gender-affirming care, the case will be one of the first opportunities that the high court has had to consider the appropriate scope of Dobbs and its impact on equal protection rights outside of the abortion context. 

• Indiana Judge Declines to Broaden State Abortion Ban: Judge Kelsey Hanlon of Indiana ruled against Planned Parenthood on Wednesday, declining to expand the life or health exception to the state’s abortion ban. Although she acknowledged the impossible position that providers have been placed in, she stopped short of finding that the narrow exception violates the constitutional rights of Indiana patients.
  

Ballot Initiatives:

• The States Where Abortion is On the Ballot:  For a quick overview of where abortion is on the ballot in November, take a look at this piece from Truthout. 

• South Dakota Ballot Measure in Court: The lawsuit against South Dakota’s abortion rights amendment is moving forward, despite the trial being set for after early voting begins. Although Secretary of State Monae Johnson has already certified the measure, Life Defense Fund–an anti-abortion group–is challenging the validity of the signatures, arguing that Dakotans for Health, the group behind the measure, failed to comply with certain state laws. Life Defense Fund argues that the measure can be invalidated after the fact, even if voters pass it in November. Dakotans for Health has decried the effort as undermining voter confidence and interfering with the election process

• Oral Argument Held over Nebraska Abortion Measure: Nebraska’s Supreme Court heard oral arguments on Monday over the state’s abortion rights ballot measure. Opponents of the measure argue that it violates the single-subject rule, a state law requiring each measure to only include one subject. They purport that the measure deals with separate issues because it would allow abortion until viability, and then permit abortions to save the patient’s life or health post-viability. Of course, this argument would render nearly every abortion law in the country invalid, as almost all states impose differing restrictions as pregnancy progresses. As a reminder, there will also be a pro-life abortion measure on the ballot in November; if passed, it would constitutionally enshrine the state’s current ban on abortion after 12 weeks. Proponents of the pro-choice measure argue that if it is struck based on the single-subject rule, then the 12-week measure must also be struck. 

• Missouri Ballot Measure Before the State Supreme Court: Following a week of intense legal maneuvering, Missouri’s Supreme Court held on Tuesday afternoon that the state’s abortion rights measure can appear on the ballot. The fate of the initiative was thrown into question following a lower court's ruling that it failed to comply with a requirement to list the laws that would be impacted if the measure passes. Although state law requires an initiative petition to include all existing laws that would be repealed by the measure, attorneys supporting the measure argue that it is in full compliance, as the amendment would not literally repeal any current abortion laws, it would instead create a new superseding law. The process of reconciling a new constitutional amendment with existing laws is not unique; Ohio is currently going through the process following the passage of its own abortion rights amendment last year. 

• Florida Police Questioning Petition Signers: Florida has ramped up its efforts to block the passage of an abortion rights ballot initiative. Reportedly, police have been questioning voters on their signatures supporting the measure, in some cases showing up at peoples’ homes. Governor DeSantis did not deny these reports and instead defended the police investigations as being aimed at guaranteeing the fairness of the November election.

Trend & Policy Watch:

• Support for Families Low in Abortion Ban States: Research conducted by Northwestern Medicine in Chicago finds that states with abortion bans are also the states that provide the least support to families. Researchers looked specifically at what types of social safety nets exist for parents and families, including paid parental leave, supplemental nutritional programs, and childcare assistance for low-income families, and compared that against the state’s abortion restrictions. Notably, Idaho–the state that is currently fighting to deny pregnant people the right to emergency abortions–was found to be the least family-supportive state. 

• South Dakota Releases Video Purporting to Clarify Abortion Ban: South Dakota’s Department of Health has released a legally mandated video purporting to clarify the bounds of the state’s abortion ban. The video fails to provide any meaningful guidance on when abortion is and is not lawful in the state; instead, it functionally recites the text of the law and provides non-medical disclaimers and generalities about the structure of the law. The lack of meaningful state guidance on the parameters of abortion bans has led to disastrous results across the country. 

• Data Theft At a Clinic Providing Abortions in Attleboro, Massachusetts: Four Women’s Health Center in Attleboro, Massachusetts has brought a lawsuit against a crisis pregnancy center, alleging data theft. The lawsuit stems from several instances of pregnant people using the clinic’s online chat service and subsequently being contacted to make an appointment at the CPC across the street, Abundant Hope. Four Women’s Health Center alleges that the CPC infiltrated their online systems and stole patient information. Crisis pregnancy centers are well known for attempting to intercept would-be abortion patients using misleading and outright deceptive tactics. 

• Abortion Drugs as Controlled Substances Threatens Healthcare in Louisiana: Providers in Louisiana are concerned about their ability to treat patients for non-abortion-related conditions now that mifepristone and misoprostol are set to be restricted as controlled substances. Although the Louisiana Department of Health sent out a memo attempting to clarify how misoprostol may continue to be used, Louisiana providers are not reassured. Like so many other abortion restrictions, the re-classification of mifepristone and misoprostol is not based in the realities of medical practice and threatens providers with liability without giving them meaningful guidance on how to manage a substantial change in standard treatment protocols. There is also no medically sound, apolitical justification for re-classifying these drugs as controlled substances; they are not dependency-forming and their safety and efficacy records have been well documented for decades.

REPRODUCTIVE HEALTH DIGEST (8/29/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest goes through developments in reproductive health litigation, legislation, ballot initiatives and policy. As we draw closer to the November election, contests over state abortion ballot initiatives are heating up, with several anti-abortion groups launching last-minute challenges. Additionally, policy surrounding reproductive health care, bodily autonomy and LGBTQ+ rights continues to develop at both the state and federal levels. Please read on to the end for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed

This Week’s Must Read:

This week’s must-read is about the people whose lives have been upended by post-Dobbs abortion bans. Last week, Amanda Zurawski, Kaitlyn Joshua and Hadley Duvall all spoke to a packed audience at the DNC about their experiences with pregnancy, miscarriage, sexual assault and abortion care. Each of these women are living reminders of why access to full-spectrum reproductive health care is critical and the horrifying consequences that follow from its prohibition. 

Legislation & Litigation:

• Ohio Blocks 24-Hour Waiting Period: After passing the Ohio Reproductive Freedom Amendment via ballot initiative last year, advocates in the state have been working to repeal abortion restrictions that remain on the books. Last week, an Ohio county judge blocked certain medically unnecessary requirements, including a 24-hour waiting period, in-person visit requirement, and state-mandated information. The judge found that these provisions are inconsistent with the reproductive rights now constitutionally guaranteed to Ohioans. Other states voting on abortion in November will face similar ongoing legal battles if their respective amendments pass into law. 

• Title IX Remains Blocked: The Title IX rule promulgated by the Biden Administration to protect LGBTQ+ students remains blocked in over half of the states, with the Supreme Court declining to allow the rule to take full effect while litigation is pending.  The new rule was announced in April of this year and is intended to protect LGBTQ+ students in an increasingly hostile national climate. Although the rule went into effect on August 1st, federal judges have blocked its enforcement in 26 states, severely undercutting its impact. 

• New York and Abortion Pill Reversal: An anti-abortion group and two crisis pregnancy centers in New York secured a preliminary victory last week, with a federal judge ruling that they can counsel pregnant patients about the controversial “abortion pill reversal” treatment. The treatment remains largely untested and its safety and efficacy are unproven. New York’s Attorney General Letitia James has sought to crack down on potential misinformation and disinformation being spread by CPCs. However, despite the experimental nature of the treatment, the judge in the case found that anti-abortion plaintiffs are protected by the First Amendment to the U.S. Constitution. 

• Austin Texas Sued Over Abortion Fund: The city of Austin Texas allocated $400,000 to help Austin residents pay for the costs associated with accessing out of state abortion care, including travel, lodging and childcare. A former city council member has brought a lawsuit asking for that allocation to be blocked on the grounds that taxpayer dollars cannot be legally used for abortion-related activities, even when the abortion takes place out of state and is entirely legal. A similar legal battle is playing out in San Antonio Texas, as the city seeks to implement a reproductive justice fund.
  

Ballot Initiatives:

Arkansas Ballot Initiative Rejected: The Arkansas Supreme Court has upheld state election officials' rejection of a pro-choice ballot initiative. The Court found that Arkansans for Limited Government, the group behind the initiative, erroneously submitted documentation of paid signature gatherers separately rather than as a single bundle. Organizers had gathered over 100,000 signatures–enough to make the ballot–but as a result of the courts’ ruling, Arkansans will not have the opportunity to vote on the measure in November. This is the latest in a string of anti-choice efforts to stop abortion ballot initiatives from going before voters in the fall. AFLG stated in response to the ruling that, although they are “outraged” by the outcome, the “effort has generated a wave of fiercely engaged Arkansas women” who will “remember this in November.” AFLG is urging supporters to cast their votes for candidates who supported the ballot measure. 

• Missouri’s Ballot Initiative Challenged by Both Sides: Missouri’s ballot initiative is facing last-minute challenges from both sides of the issue. Proponents of the initiative are challenging the secretary of state’s ballot language, which distorts the intent and impact of the ballot measure. The language approved by Secretary of State Ashcroft states that the measure would allow abortion “at any time of pregnancy,” would prohibit any government regulation of abortion and would remove protections for pregnant people. In actual fact, the ballot measure would effectively restore the Roe standard, allowing for government regulation of abortion post-viability. While pro-choice advocates fight for fair ballot language, opponents of the measure argue that it should be rejected on the grounds that it fails to specify all of the laws potentially impacted by the amendment’s passage and purportedly contains more than one subject. They make the case that voters should be deprived of the opportunity to vote directly on the issue because the use of the phrase “fundamental right to reproductive freedom” is “unlimited in scope” and too broad to be permitted on the ballot. Similar challenges have been rejected in other states. 

• Abortion on the Ballot in Montana: In some good news, the Montana Secretary of State has certified that abortion will be on the ballot in November. If passed, the measure would preserve the right to pre-viability abortion in the state. 

• Nebraska Dueling Ballot Measures: In Nebraska, multiple abortion ballot initiatives will appear before voters in November. One initiative, advanced by pro-choice advocates in the state, would enshrine the right to abortion until fetal viability, significantly expanding access in the state. The second initiative would effectively enshrine the current ban on abortion after 12 weeks, prohibiting abortions in the second and third trimester. This 12-week ballot initiative is backed by anti-abortion groups and seeks to persuade voters to make the current post-Dobbs reality in Nebraska the permanent status quo. Groups on the ground are working to ensure that voters are clear on which of the two initiatives supports reproductive health care in the state. 

• Idahoans Consider 2026 Ballot Initiative: Following the disastrous fallout from Idaho’s total abortion ban, advocates have launched efforts to explore the possibility of a 2026 ballot initiative to restore reproductive rights to the state. Because of Idaho’ state laws, this effort would be to craft legislation for voters to directly consider, rather than a constitutional amendment. Currently, Idaho has one of the strictest abortion laws in the country, permitting abortion only to save the pregnant person’s life. This past term, the state went before the U.S. Supreme Court to defend its right to deprive Idahoans of the right to health-preserving emergency abortions. Testimony in that case included reports of Idahoans having to be air-lifted out of state to obtain care in severe emergencies.

• Florida Ballot Initiative Faces Challenges: The Florida Supreme Court has ruled to allow a financial impact statement for the abortion rights ballot initiative to remain in place. Floridians Protecting Freedom argued that the language should be blocked–as written, it warns voters of consequences including decreasing the state’s live births, and potentially leading to state and federal taxpayer funding for abortion in the state. For the amendment to pass, it will have to garner at least 60% of the vote in November.

Trend & Policy Watch:

• Ohio and Fetal Personhood: An Ohio lawmaker has introduced fetal personhood legislation that would allow embryos or fetuses to be claimed as dependents for tax purposes. Although this kind of legislation is often touted as pro-family, in practice it legally codifies the idea that the state considers a fetus or embryo to have the rights as a child under the law. 

• Abortion Polling: New polling from KFF shows that support for abortion remains high and is relatively consistent across party and religious lines, while disapproval of severe abortion bans and restrictions continues to be widespread. The research also showed that a person’s reported political affiliation had little statistical relation to whether or not that person has had an abortion in their life. 

• Abortion Bans and Mental Health Exceptions: At present, 14 states are enforcing near-total abortion bans across the country, each with varying exceptions for extreme circumstances such as the life or health of the pregnant person. However, noticeably absent (and explicitly excluded in some cases) from the definition of health of the pregnant person is mental health. This failure to recognize mental health as a legitimate medical reason for terminating a pregnancy is inconsistent with recent research showing that mental health is one of the leading causes of pregnant and postpartum mortality. Complicating things further, several medications used to treat certain common mental health disorders may create an increased risk of birth defects, making them potentially incompatible with continuing a pregnancy. 

• Planned Parenthood During the DNC: Planned Parenthood drew national attention last week when its mobile clinic provided free vasectomies, emergency contraception and medication abortions in Chicago near where the Democratic National Convention took place. Planned Parenthood explained that the use of the mobile clinic furthers its mission of expanding access to “care, no matter where.”

• Texas and Trans Rights: Texas, under the leadership of Attorney General Ken Paxton, is once again moving to restrict the rights of trans Texans to live safe and affirming lives. A new rule will reportedly not allow trans drivers in Texas to change the gender markers on their drivers license, even with a certified court order. The internal email showing the change in rule also directed DPS employees to report the names and ID numbers of individuals requesting to change the sex reflected on their license, creating concern about information gathering on trans Texans at a time when efforts to restrict the rights of trans people around the country have reached a fever pitch. 

• Florida and LGBTQ+ Visibility:Florida’s tourism marketing agency has quietly pulled its LGBTQ+ Travel section from its website, despite historically being a popular spot for LGBTQ+ visitors. This continues a concerning trend of the Florida government diminishing the rights and visibility of LGBTQ+ Floridians.

REPRODUCTIVE HEALTH DIGEST (8/15/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we have broken down our reporting by category, covering all of the federal, state and local legislation, litigation, policy, and ballot initiative news that you need to know. As always, we strive to make this Digest the most effective and efficient resource that it can be, and we welcome any feedback from our readers.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed

This Week’s Must Read:

This week’s must read takes a critical look at the potential reach of fetal personhood laws–laws that seek to grant an embryo or fetus full legal rights–and the anti-abortion movement’s strategy to weaponize them against reproductive rights. In addition to nullifying abortion rights, fetal personhood laws would place the personhood of the pregnant person in direct conflict with that of the fetus and produce a whole host of legal and practical absurdities and harms. If a case over the constitutionality of fetal personhood laws ends up before the current Supreme Court, the Court could issue a ruling that casts a national shadow on all aspects of reproductive health care. 

Legislation & Litigation:

• Montana and Minors’ Access to Abortion: On Wednesday, the Montana supreme court ruled that minors’ fundamental right to privacy, including autonomy over their own medical decisions, renders parental consent requirements for abortion unconstitutional. The decision was unanimous and comes at a time when parental rights have been wielded as an argument against the right of minors to obtain health care. The full opinion is available here. 

• Idaho and EMTALA: Following the U.S. Supreme Court’s dismissal of Moyle v. United States as improvidently granted, the Ninth Circuit Court of Appeals has set oral argument in the case for the week of December 9th, 2024. In this case, the Biden Administration argues that Idaho’s total abortion ban, which only includes an exception for the life of the pregnant person, is preempted to the extent it conflicts with the Emergency Medical Treatment and Active Labor Act’s (EMTALA) broader federal obligation to provide stabilizing care to preserve a patient's life and health. The Supreme Court’s dismissal allowed the Ninth Circuit’s previous injunction on the law to go back into place, temporarily granting Idahoan patients access to emergency care. The court will now receive briefing and oral arguments that will determine the future of emergency healthcare for pregnant people in the state. How the court rules will set a critical example for other states, like Texas, that are litigating over the question of whether states’ abortion bans supersede federal emergency health care provisions. The case is all but certain to end up back before the U.S. Supreme Court in the coming years. 

• Texas and Emergency Healthcare: Two Texas women have filed complaints against Texas hospitals in federal court, after being denied treatment for their ectopic pregnancies, resulting in the loss of their fallopian tubes. The complaints are brought pursuant to EMTALA. Although Texas is currently enforcing a total abortion ban, the law allows for the termination of ectopic pregnancies; however, providers and hospitals have been hesitant to provide even legal care out of fear of civil and criminal liability. In states with severe abortion bans in place, the futility of exceptions is clear. Stories of pregnant people being turned away in emergency circumstances, having to be airlifted out of state, or not being able to access care under rape or incest exceptions have been ceaseless. This new case comes on the heels of a similar lawsuit brought by Mylissa Farmer against the University of Kansas Health System, after the hospital failed to provide her with emergency treatment in the midst of a severe pregnancy complication. 

• Oklahoma and Title X: Oklahoma is asking the U.S. Supreme Court to step in in a dispute over Title X funding and abortion referrals. The Department of Health and Human Services is enforcing a requirement that states receiving Title X family planning grants must offer a call-in number to a family planning hotline that includes information about abortion. However, citing Dobbs and anti-discrimination law, Oklahoma argues that this requirement amounts to discrimination against entities that do not provide abortions. Previously, the 10th Circuit Court of Appeals found that HHS had the authority to enforce its requirement, reasoning that merely providing a phone number for a hotline that includes information about abortion, among other family planning options, does not amount to mandating abortion referrals. 

• Illinois: Illinois Governor JB Pritzker has signed 3 new abortion-protective bills into law, continuing the state’s role as a bastion of access in the region. The first bill, HB 581, grants the Illinois Department of Public Health authority to investigate hospitals for EMTALA violations. HB 4867 extends state anti-discrimination protections under the Illinois Human Rights Act to people for their reproductive health decision, including abortion. The third bill, HB 5239 strengthens the state’s existing shield law by prohibiting state and local jurisdictions from disclosing information or utilizing resources to assist in out-of-state investigations into legal reproductive healthcare. The new protections come weeks after neighboring state Iowa began enforcing its ban on abortion after detection of fetal cardiac activity and in anticipation of a potential republican presidency that could hamstring abortion rights nationwide. 

• California and Abortion Pill Reversal: A San Diego Catholic nonprofit has filed a federal lawsuit against California Attorney General Rob Bonta seeking to block his efforts to crack down on crisis pregnancy center misinformation. The group argues that AG Bonta’s activities suppress their First Amendment rights. Abortion pill reversal (APR) is not FDA approved and major medical associations including the American College of Obstetricians and Gynecologists do not support the practice based on the lack of evidence demonstrating its safety and efficacy.  
  

• Ohio and Gender Affirming Care: An Ohio County judge has ruled that the state’s ban on gender affirming care for minors under the age of 18 can go into effect. The devastating ruling is causing families of trans minors to consider leaving the state in order for their children to continue to access life-saving care. Over half of U.S. states have now banned or limited access to gender affirming care for minors.
  

Ballot Initiatives:

• Missouri: Missourians will have the opportunity to vote directly on abortion rights in November, making it the eighth state to put abortion on the ballot this year. If passed, the amendment would protect the right to abortion “pre-viability” (around 24-weeks gestational age), with exceptions for the life or health of the pregnant person at any point in pregnancy. At present abortion is completely banned in Missouri. For more insight into the impact of Missouri’s abortion ban, you can read Missouri ob-gyn Dr. Iman Alsaden’s discussion of the public health repercussions of limiting access to reproductive health care. 

• Arizona: Despite ongoing litigation attempting to block Arizona’s abortion rights ballot initiative, it appears that the measure will appear before voters in November. On Monday, Arizona’s Secretary of State certified the signature count, which Arizona for Abortion Access reports is the highest signature count ever recorded for a citizen initiative in the state’s history. If passed, the amendment would extend abortion protections from the current 15 weeks to around 24 weeks, with exceptions. Although advocates are optimistic about the initiative’s likelihood of success, Arizona Right to Life continues to attempt to block it. The group is asking the state Supreme Court to find that the legally required initiative summary misled petition signers, re-urging arguments that were already rejected by a Maricopa County Superior Court judge. Anti-abortion activists were handed a small win by the state’s supreme court this week, with the court finding that the use of the phrase “unborn human being,” rather than the scientifically accurate “fetus,” can be used in the pamphlet that voters will see.

• South Dakota: Although it appears likely that South Dakotans will see abortion on the ballot in November, Life Defense Fund, an anti-abortion group, is continuing its litigation efforts to stop the measure from being put to a vote. The case was previously dismissed, but the group has now added Secretary of State Monae Johnson as a defendant and renewed their lawsuit, arguing that Dakotans for Health failed to comply with applicable laws in circulating its petition. The litigation is unlikely to be resolved prior to the deadline for the secretary of state to certify ballot questions to county auditors, but Life Defense Fund argues that even if the amendment makes it onto the ballot, the secretary of state’s office could refuse to count any votes towards it. Dakotans for Health has decried the efforts as “another in a series of desperate measures” to silence voters’ voices on the amendment. South Dakota is currently under a total abortion ban; if passed, the amendment would effectively codify the Roe trimester framework.

Trend & Policy Watch:

• Abortion Bans and HIPAA: Experts warn about the lack of privacy protections for patient information at crisis pregnancy centers (CPCs). Although these centers often misleadingly imply that they are bound by HIPAA and may offer some semi-medical services, such as pregnancy testing or free ultrasounds, the vast majority of them are not bound by patient privacy laws. Patients need to be aware that these centers may be collecting and sharing data that could aid in pregnancy and abortion investigation and criminalization. Data collection and sharing is particularly concerning in the present legal environment, as several states are seeking to ban interstate travel for abortion care and crack down on those who self-manage abortion within their own state. 

• Florida: The impact of Florida starting to enforce its 6-week abortion ban has been devastating, not just for Floridians, but for patients all over the country who lost a critical access point. Data from the National Abortion Federation shows that calls for help with traveling out of state have increased 575% in the 2 months since the ban went into effect. Brittany Fonteno, CEO of NAF described the aftermath as “devastation and chaos.” 

• Self-Managed Abortion: A new study from Advancing New Standards in Reproductive Health (ANSIRH) shows continuation in the trend of more pregnant people self-managing their abortions. As more and more states restrict access to abortion, the cost and time burdens for accessing care are rising, forcing pregnant people to travel long distances, navigate multiple legal landscapes, take time off work, find child care, and expend significant financial resources. Self-managed abortion, which typically involves taking mifepristone and/or misoprostol outside of a clinical setting, allows pregnant people to undergo their abortions at home with the safety net of their support systems around them. While all people should have access to safe and equitable health care,  data shows that mifepristone and misoprostol are both safe and reliable methods for ending a pregnancy at home in its early stages. 

• Amnesty International Finds Abortion Bans Violate Human Rights: A new report from Amnesty International details how the post-Dobbs legal landscape in the U.S. has created a human rights crisis in violation of international law. The report highlights the stories of impacted individuals and outlines how preventing access to abortion harms the health, wellbeing and autonomy of pregnant people, particularly those in already marginalized communities. The report calls on the U.S. to restore and protect the right to abortion and ensure that health care is accessible by all on equal terms and without discrimination.

• Iowa’s Maternal Health Care Crisis: As Iowa begins to enforce its ban on abortion after detection of fetal cardiac activity (around 6-weeks gestational age), the state will be forced to contend with its worsening maternal health care crisis. Iowa has the lowest per capita ratio of ob-gyn providers to patients of any state in the country, and over 1/3 of the state’s counties are considered maternity care deserts. The lack of providers will inevitably worsen with the ban in place, as the past two years have demonstrated a measurable trend of medical students and residents gravitating away from states with abortion bans in place and providers choosing or being forced to leave to practice elsewhere. 

REPRODUCTIVE HEALTH DIGEST (8/1/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest discusses the implementation of Iowa’s 6-week abortion ban, a ruling out of Nebraska that impacts both abortion rights and gender-affirming care, updates on ballot initiative battles across the country, and much more. Please read on to the end for the news that you need to know. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed

This Week’s Must Read:

This week’s must-read comes from Vox and outlines the current crisis facing our Supreme Court. Although the Court only heard two reproductive rights-specific cases this term, the Court’s decisions across the board illustrate an alarming unraveling of critical and well-established democracy-protecting precedent and a stunning disregard for judicial consistency. The impact of the Court’s decisions this term will be felt across broad issue areas, undermining the stability and security of many of our most fundamental rights. 

Legal Analysis: 

• Iowa: Iowa’s near-total abortion ban took effect on Monday, July 29th, banning abortion at six weeks, before most Iowans will even know they are pregnant. Although there are narrow exceptions to the law to preserve the life of the pregnant person or in some cases of rape, incest or fatal fetal abnormalities, the reality is that the vast majority of patients will now be forced to leave the state to obtain care.

• Nebraska and Single-Subject Rule: The Nebraska Supreme Court has issued a ruling upholding the state’s law that combines a 12-week abortion ban and prohibition on gender-affirming care for individuals under 19 years old, saying the law did not violate the single-subject rule because both were forms of health care.

• The Ninth Circuit Court of Appeals and Mifepristone Access: The Ninth Circuit Court of Appeals has declined a group of 7 GOP-led states’ request to intervene in a case involving access to the abortion pill mifepristone,

Legal Analysis:

• Iowa:

  • Iowa started enforcing its 6-week abortion ban on Monday, July 29th. The law bans abortion with narrow exceptions after detection of a “fetal heartbeat”–a medically inaccurate term for the electrical impulses that can be heard via ultrasound very early in pregnancy prior to the chambers of the fetal heart actually forming. These electrical signals typically become detectable around 6 weeks gestational age, a point in pregnancy before many people are even aware that they are pregnant. Previously, abortion in Iowa was permitted until 20 weeks. 

  • The fetal heartbeat law was originally passed in 2023 and briefly went into effect prior to the ACLU challenging it, and a district court blocking its enforcement during litigation. However, the Iowa Supreme Court determined, using rational basis review, that the law met constitutional muster and could once again take effect. The ban includes narrow exceptions for vaguely defined medical emergencies, and, if the fetus is less than 20 weeks post-fertilization, for cases of rape or incest when reported to law enforcement, or for fetal abnormalities incompatible with life. Of course, in practice these exceptions will do little to meaningfully expand patients’ access to necessary care. And, they impose cruel non-medical requirements that take decisional autonomy for when and how to report a crime away from victims of rape or incest who require abortion care. 

  • With Iowa losing abortion access, other states are  preparing to take on an influx of new patients. Patients’ closest in-person access points will now be Illinois and Minnesota, both of which have protective abortion laws in place. For individuals less than 12 weeks along, they may also be able to access care in Nebraska. Iowa is now the fourth state to impose a 6-week abortion ban, joining the ranks of Florida, South Carolina and Georgia.

• Nebraska and Single Subject Rule:

  • The Nebraska Supreme Court issued a decision last Friday finding that the state legislature did not act improperly in combining a ban on gender-affirming care for individuals under 19 with a 12-week abortion ban. The law in question, LB 574, was originally introduced as a ban on gender-affirming care; however, after the state legislature failed to pass a 6-week abortion ban, it amended the gender affirming care law to also include a 12-week abortion ban. This allowed the state to restrict abortion access despite the legislative hurdles faced by the 6-week ban. 

  • Planned Parenthood, represented by the ACLU, brought a lawsuit challenging LB 574 as a violation of the single subject rule, a Nebraska constitutional requirement that a bill only contain one subject. The groups argued that gender-affirming care restrictions and abortion restrictions lack the necessary similarity to be appropriately addressed in one bill. They also argued that the two bills were combined in order to secure enough votes for passage, when the issues would have failed separately. However, the court disagreed, finding that the bill’s contents fell under the title of “public health and welfare” and were sufficiently connected to proceed under one piece of legislation. 

  • In November, Nebraskans will likely have the opportunity to vote directly on the issue of abortion, as advocates work to get it onto the ballot. The ballot  measure  proposed by Protect Our Rights would restore abortion rights until fetal viability, with exceptions for the life or health of the pregnant person after that point.

• Ninth Circuit and Mifepristone Access:

  • The Ninth Circuit Court of Appeals, the appellate court over much of the western United States, including Washington, has declined a group of 7 GOP-led states’ requests to intervene in a case about access to mifepristone. This ruling comes after the U.S. Supreme Court threw out Alliance for Hippocratic Medicine’s challenge to the FDA’s approval of mifepristone on standing grounds. 

  • Last February, in direct contrast to Alliance for Hippocratic Medicine’s case, 10 states led by Washington brought a lawsuit alleging that the federal government has imposed unduly harsh restrictions on use of mifepristone that are not justified by the drug’s stellar safety record. Idaho then led a group of conservative states in moving to intervene in that lawsuit. The states argued that they would be harmed in myriad ways by the elimination of in-person dispensing requirements for the drug. After a district court ruled against Idaho’s coalition, the states appealed up to the Ninth Circuit. 

  • The Ninth Circuit panel’s decision found that the states lacked standing because the connection between FDA’s actions and any alleged harm incurred by the states was too attenuated and relied on the independent actions of other actors, including doctors and patients. The Court also found that to allow the states to intervene would effectively grant any state the right to intervene in any lawsuit related to FDA regulation of a drug. Judge Matthew Kacsmaryk, out of the Northern District of Texas, came to the opposite conclusion in the states’ request to intervene in the Alliance for Hippocratic Medicine v. FDA case, opening the door for the states to attempt to revive the litigation that the Supreme Court recently rejected on standing grounds. Because SCOTUS did not rule on the merits of the case, new litigants will try to once again challenge the FDA’s approval of the drug, asserting refreshed standing arguments to support their claims. 

More News in Access:

• Utah: The Utah Supreme Court ruled today to uphold an injunction on the state’s 2020 trigger ban, which would functionally ban all abortion in the state. The ban has been on hold while litigation challenging it plays out, with the lower court judge finding that the risk of harm to patients is too high to allow the law to take effect prior to resolution of the question of its constitutionality. 

• Arizona: A Maricopa County Judge has ruled that the phrase “unborn human being” cannot be used in the voter information packet for the ballot initiative seeking to enshrine pre-viability abortion rights into the state’s constitution. Arizona for Abortion Access successfully argued that the wording violated the state’s requirement that the language must be “impartial,” with Judge Whitten finding that the phrase “unborn human being” was partisan and must be replaced with politically neutral language. The decision is all but certain to be appealed.  

• Montana: Montana county-level election officials have verified that advocates submitted enough signatures to advance an abortion rights ballot initiative to the voters in November. Recently, Montana advocates faced resistance from the Montana Secretary of State, who announced that the votes of so-called “inactive” voters should not count towards the total. However a state district judge blocked enforcement of that newly announced rule, citing the need to broadly interpret citizens’ constitutional right to participate in direct democracy. 

• New Hampshire: New Hampshire Governor Chris Sununu signed anti-trans legislation banning transgender girls from playing on the girl’s sports teams at their schools. The schools are required to look at students’ birth certificates to determine eligibility for participation on certain teams. 

• Kansas: In Kansas, providers are temporarily relieved from compliance with a law requiring them to ask their patients invasive questions about why they are seeking an abortion. If enforced, the law would require providers to inquire into their patients’ reasons for seeking care, including, among other things, whether it was because of career or school plans, financial reasons, or not wanting a disabled child. Questions like these are obviously divorced from any medical necessity–instead, they allow the state to gather data on private decision making and stigmatize patients who may not otherwise have chosen to disclose their reasoning. 

• Kansas: Kansas woman Mylissa Farmer has sued the University of Kansas Health System for its failure to provide her with emergency care, as it is legally obligated to under the Emergency Medical Treatment and Active Labor Act (EMTALA). This case comes after the Supreme Court failed to definitively rule on the question of whether state abortion bans can override federal EMTALA obligations. 

• Arkansas: In Arkansas, advocates continue to battle over whether they have submitted sufficient signatures to support their abortion-protective ballot initiative. Arkansas Secretary of State John Thurston rejected the proposed ballot initiative, asserting that  Arkansans for Limited Government failed to comply with technical requirements for a ballot initiative. The group is challenging that rejection in court. Although the Arkansas Attorney General asked the court to dismiss the case, the court has not yet issued a ruling on that request, instead ordering the state to begin counting signatures. If the court agrees with the Attorney General’s argument and declines to include signatures collected by paid canvassers in the final count, the amendment will have fallen short of the threshold needed to go before voters in the fall. 

• Florida: The Florida Supreme Court has indicated that it will move quickly on two cases involving the financial impact statement attached to a proposed abortion rights ballot initiative. The conflict revolves around the initial financial statement, which became outdated when the state supreme court ruled on Florida’s 6-week abortion, and the subsequent revised statement, which Floridians Protecting Freedom alleges is politicized and inaccurate. 

• North Carolina: North Carolina Judge Catherine Eagles has issued another decision on the state’s abortion ban, ruling that the requirement that the location of a pregnancy be documented prior to prescribing abortion pills should be permanently blocked. Judge Eagles simultaneously restored a previously blocked provision of the law that requires all abortions after 12 weeks gestational age to take place in the hospital. 

• Amarillo: Voters in Amarillo, Texas will decide in November whether to make theirs the next “sanctuary city for the unborn,” prohibiting people from helping others to travel through Amarillo to access abortion care and making it illegal to possess abortion pills within the city. Although Texas is already enforcing a total abortion ban, several localities have enacted these local bans. Their enforceability is uncertain; however, the chilling effect that they have on citizens’ freedom of choice and movement is ultimately the point. 

• Title X and Birth Control: Texas Attorney General Ken Paxton has sued the Biden Administration over Title X rules requiring certain healthcare entities to provide contraception to minors without the need for parental consent. Paxton argues that this rule is in violation of a Fifth Circuit ruling in a case originally heard and ruled on by Judge Matthew Kacsmaryk. Cases like this are emblematic of the concerns raised by reproductive justice advocates about looming threats to contraception access, fertility treatments and other forms of reproductive healthcare. 

• Title IX and LGBTQ+ Rights: The Biden Administration’s Title IX rule extending anti-discrimination protections to LGBTQ+ students has been blocked  by the 11th Circuit Court of Appeals. The 11th Circuit’s ruling overturns a district court’s ruling finding that the GOP-led states were unlikely to succeed in showing that the Administration’s rule was unreasonable or unjustified. The rule’s protections are now blocked in over half of U.S. states. 

• Abortion Storytelling: A Wisconsin woman is opening up about her experience with abortion and how it changed her perspective and political views on the topic. Storytelling is a critical part of the movement for reproductive freedom, humanizing the issue and centering the voices of those with lived experience. 

• Vice President Kamala Harris on Abortion: As the Biden Administration’s top voice on reproductive rights, Vice President Harris’s move into the presidential race as the presumptive democratic nominee marks a moment where the national conversation around the future of abortion rights could see a significant shift. This is particularly true as leading conservative voices continue to disagree about the proper role of the federal government in abortion rights. 

• The Supreme Court and Chevron Deference: The Supreme Court’s decision this year overruling Chevron Deference opened the door for courts to second guess expert agency judgment in all areas, including healthcare. Experts are weighing in on the current and potential future consequences of that landmark decision. An abortion hostile federal administration could weaponize the overturn of Chevron to direct executive agencies to limit access to abortion and marginalize the rights of pregnant people.

REPRODUCTIVE HEALTH DIGEST (7/18/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover changes to and trends in reproductive health law at the state and federal level. With state legislative sessions having largely adjourned for the year and the Supreme Court now in recess, reproductive health news will be coming from different sources and at a different pace than in the first half of the year. In order to continue to cover the news in the most responsive and effective way possible, we will be periodically adapting the format of the Digest. Please read on to the end for a comprehensive overview of the reproductive rights, health equity and bodily autonomy news that you need to know. 

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This Week’s Must Read:

This week’s must-read comes from Vox and outlines the current crisis facing our Supreme Court. Although the Court only heard two reproductive rights-specific cases this term, the Court’s decisions across the board illustrate an alarming unraveling of critical and well-established democracy-protecting precedent and a stunning disregard for judicial consistency. The impact of the Court’s decisions this term will be felt across broad issue areas, undermining the stability and security of many of our most fundamental rights. 

Legal Analysis: 

• Wisconsin: The Wisconsin Supreme Court has agreed to hear two cases impacting abortion rights in the state. The challenges revolve around the post-Dobbs enforceability of a 175-year-old total abortion ban and whether the state’s constitution protects the right to abortion. Attorney General Josh Kaul argues that the 1849 ban is superseded by the state’s 1985 law permitting abortion until fetal viability, and Planned Parenthood argues that the ban is unconstitutional under established Wisconsin precedent. Last year, a state court ruled that the 1849 ban only criminalizes assaulting a pregnant person in order to end their pregnancy but does not apply to lawful abortions, giving Planned Parenthood the assurance it needed to resume providing abortions for the first time in over a year. Anti-abortion officials appealed that decision. The state’s high court currently has a liberal majority, following the election of Justice Janet Protasiewicz, and the cases stand a good chance of ending in favor of abortion rights. 

• Kansas: The Kansas Supreme Court has permanently blocked a state law banning dilation and extraction procedures, the most common second trimester abortion procedure. The Court upheld prior precedent finding that the right to an abortion is guaranteed under the Kansas Constitution. Notably, in 2022, Kansas voters rejected a ballot measure that would have excised abortion from the state’s constitution. Abortion remains legal in Kansas until 22 weeks. 

• Arkansas: Arkansas Secretary of State John Thurston has rejected a proposed abortion rights ballot initiative. If passed, the amendment would protect the right to abortion until 18 weeks gestational age for any reason and throughout the pregnancy for cases of rape, incest, lethal fetal anomaly or risks to the pregnant person’s life or health. In rejecting the initiative, the Secretary of State asserted various technical errors, including an alleged failure to submit certain required paperwork. Arkansans for Limited Government, the group behind the effort, disputed the Secretary of State’s determination, stating that they had worked with the Secretary’s office throughout the process to ensure total compliance with all rules and regulations. The rejection of Arkansas’ ballot proposal is the latest in a string of attempts to block pro-choice initiatives across the country using litigation, misinformation campaigns, delay tactics, attempts to raise the threshold to pass constitutional amendments, and issuing competing anti-choice ballot initiatives. Arkansas advocates have asked the state supreme court to overturn the Secretary of State’s rejection of the initiative. 

• Arizona: Arizona advocates have turned in more than double the signatures needed to advance its pro-choice ballot initiative, moving it one step closer to the ballot box. If passed, the amendment would protect the right to abortion until fetal viability, easing the current state restriction on access after 15 weeks. The initiative effort was galvanized by the state supreme court’s decision in April to allow an 1864 total abortion ban to go into effect. Although that ban was legislatively repealed following the court’s ruling, it underscored the urgency of enshrining permanent protections for health care into state law. Despite having turned in enough signatures, Arizona for Abortion Access, the group behind the measure, is facing resistance from the state. The Republican-led Arizona Legislative Council has proposed language for the voter pamphlet that uses the term “unborn human being,” rather than the medically and scientifically accurate term ‘fetus.’ Arizona for Abortion Access has filed suit challenging this language, arguing that the language is politically charged and that voters have a right to impartial and accurate information. 

• Abortion and Federal Politics: In the past two weeks, the RNC released its official policy platform, and former president Donald Trump announced his running mate as anti-abortion Ohio Senator J.D. Vance. 
  
  The RNC’s newly released platform endorses the idea of fetal personhood, stating that, on the “Issue of Life” the party “believe[s] that the 14th Amendment to the Constitution of the United States guarantees that no person can be denied Life, or Liberty without Due Process, and that the States are, therefore, free to pass Laws protecting those rights.” Although the platform goes on to say that it will support prenatal care, access to birth control, and IVF, the concept of fetal personhood is in direct conflict with IVF, as well as certain forms of contraception like IUDs. In addition to potentially halting access to IVF, fetal personhood laws that treat embryos and fetuses as full human beings would result in increased surveillance and criminalization of pregnant people and an endless cascade of logically and legally absurd inconsistencies. And, although an explicit call for a national abortion ban was not included in the RNC’s platform, fetal personhood laws could achieve the same effect, and an anti-choice administration could functionally ban abortion in its entirety by arguing for strict enforcement of the Comstock Act. 
  
  As the RNC holds its convention this week, former president and Republican nominee Donald Trump has announced that his running mate will be Ohio Senator J.D. Vance. Although Vance’s statements on abortion have flip-flopped over the course of his political career, his history of opposing abortion rights is irrefutable. For example, he has indicated that he does not support abortion even in cases of rape or incest–a widely unpopular policy position. He also boasts an A+ rating with anti-abortion group Susan B. Anthony Pro-Life America, and has expressed his support for the concept of fetal personhood. He opposed Ohio’s abortion ballot initiative,  calling its passage “morally repugnant.” He also appears to oppose no-fault divorce, a legal system that grants married people autonomy over their own relationship decisions. 

• South Dakota: A South Dakota judge has dismissed a lawsuit attempting to remove a pro-choice ballot initiative from the November ballot, allowing the amendment to move forward. If passed, the amendment would effectively codify the Roe standard, prohibiting state restrictions on abortion in the first trimester, and only allowing restrictions that are reasonably related to the pregnant person’s health in the second trimester. 

• Florida: The fight for Florida’s abortion rights ballot initiative continued this week, as Floridians protecting Freedom, the group behind the effort, received a revised financial impact statement with a distinctly anti-abortion tilt. Although the financial impact statement is supposed to be an apolitical communication about the potential cost of implementing a proposed amendment, the revised statement opines on how the initiative would decrease “live births” in the state and significantly increase abortion. The statement also warned about parental consent laws for abortion if the amendment passes and raised concerns about taxpayer dollars going towards funding abortion in the state. Proponents of the ballot initiative continue to fight back against anti-abortion activists and lawmakers’ relentless attempts to strip the amendment from the ballot. 

• EMTALA: In the wake of the Supreme Court’s decision to dismiss Moyle v. United States, the Biden Administration has issued a letter reminding hospitals of their federal obligation to perform stabilizing abortions in emergency situations under the Emergency Medical Treatment and Active Labor Act (EMTALA). This is the second letter of its kind, with the first spurring Idaho to argue that, under its total abortion ban, physicians could only provide abortions in cases where it was necessary to save the pregnant person’s life–but not in cases to preserve their health. In response to the Administration’s second letter, the House Appropriations subcommittee on Labor, Health and Human Services, and Education unveiled a budget that includes a rider that “none of the funds made available by this act may be used to implement, administer, or enforce” the EMTALA executive order. 

• Iowa: In our last Digest, we reported on how the Iowa supreme court has ruled that the state can enforce a 6-week abortion ban, using rational basis review to find that the law was constitutional. Providers in Iowa are now bracing for how that ruling will impact their ability to practice medicine, citing concerns about the unclear and non-medical language employed in the law. These same concerns have been raised by providers in abortion-restrictive states across the country. 

• Contraception and Emergency Contraception Use in Ban States: New research from the University of Southern California shows a sharp decline in contraception and emergency contraception use and prescriptions in states with abortion bans in place. To explain this decline, researchers pointed to significant clinic closures following the Dobbs decision and uncertainty about the legal status of emergency contraception options like Plan B, which anti-abortion groups erroneously label as an abortion inducing drug. The study showed that in states like Texas, where a total abortion ban is in place, birth control prescriptions dropped by about a third and emergency contraception dropped by nearly half. After the Dobbs decision overturned Roe, allowing a patchwork of abortion bans and restrictions to go into place at the state level, many family planning clinics were forced to close their doors. Although many of these clinics performed abortions, they also were a critical resource for birth control for many people. This new reporting, combined with the reporting that we discussed last week about the rise of infant deaths in Texas paints a grim picture about the effects of abortion restrictions on the landscape of reproductive healthcare. 

• Gender Affirming Care in Ohio: In Ohio, a trial over the constitutionality of the state’s gender affirming care ban began on Monday, July 15th. The ban was passed over Governor Mike DeWine’s veto, and would apply to hormone replacement therapy, puberty blockers and gender affirming surgery.  

• Gender Affirming Care in Florida: Federal District Court Judge Robert Hinkle has once again denied Florida’s request to enforce its gender affirming care ban, affirming a permanent injunction on the state’s restrictions. Judge Hinkle’s opinion called out the state’s clear ideological motivations in passing the legislation, writing that the “elephant in the room should be noted at the outset[;] Gender identity is real[,] [t]he record makes this clear,” and that “some legislators plainly acted from old-fashioned discriminatory animus,” referring to trans people as "mutants" and "demons.” Invoking Martin Luther King Jr., Judge Hinkle opined that, in time, discrimination against trans people would be relegated to the past, as “[t]o paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.” 

• No-Fault Divorce: Certain lawmakers have set their sights on ending or restricting no-fault divorce, the legal standard on the books in all 50 states that allows spouses to end their marriage without having to prove fault on the other spouse’s part. These laws are critical for allowing individuals to decide for themselves when to leave a marriage, particularly in unhealthy or abusive relationships. After the fall of fault-based divorce, there was a decrease in female suicide, as well as domestic abuse. Attacks on no-fault divorce are consistent with an ongoing trend of restricting and rolling back rights relating to personal autonomy and decision making, and handing that power back to the state. 

• Abortion Polling: Polling continues to show incredibly high rates of support for abortion and reproductive rights. One poll shows that in states with abortion bans in place, only about 11% of residents support total abortion bans; by contrast, over half of residents support abortion being legal in all or most cases. Another poll indicates that about 6 in 10 Americans believe abortion should generally be legal for any reason, and 8 in 10 support abortion in cases to preserve the pregnant person’s life or health, cases of lethal fetal anomaly, or pregnancies resulting from rape or incest. Despite consistent polling on the popularity of the right to choice, anti-abortion lawmakers continue to pass restrictions, take aim at other aspects of reproductive health care and bodily autonomy, and vigorously attempt to stymie citizen-led ballot initiatives.

• Abortion Data Collection and Privacy: Concerns about increased abortion data collection are on the rise, as states seek to collect more and more information on patients and HIPAA protections remain insufficient to fully preserve patient privacy.   

REPRODUCTIVE HEALTH DIGEST (7/03/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest is coming to you a day earlier and a bit shorter than usual due to the holiday, but it is still jam-packed with critical reproductive health news. As the Supreme Court winds up its term, it has released its order dismissing  Moyle v. United States, the case challenging Idaho’s abortion ban under EMTALA, and state-level litigation, ballot initiatives and legislation continue to evolve rapidly. Please read to the end for the news that you need to know.

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This Week’s Must Read:

Two years post-Roe, this week’s must-reads from KFF and Vox take a look at where abortion rights stand today. Despite the Supreme Court’s promise in Dobbs to return abortion to the states, teh Court heard two abortion-related cases in this term alone. And, the states continue to enforce a patchwork of inscrutable abortion bans, restrictions and regulations.

Legal Analysis: 

• The Supreme Court and EMTALA:

  • In the biggest reproductive health news since our last Digest, the Supreme Court has dismissed Moyle v. United States, the case challenging Idaho’s abortion ban as a violation of the Emergency Medical Treatment and Active Labor Act (EMTALA). Idaho’s total abortion ban contains an exception only to save the life of the pregnant person, not to preserve their health. However, under EMTALA, federal law requires any hospital that receives Medicare funding to provide stabilizing care to any patient that presents with a life or health-threatening emergency. In certain circumstances, that stabilizing care may involve performing an abortion. The Biden Administration sued the state, arguing that the portion of Idaho’s ban that doesn’t allow abortions to preserve health is preempted by EMTALA’s stabilization requirement. Idaho vigorously defended their state law–fighting for the right to deny pregnant people abortion care in emergency situations. 

    Although two lower courts temporarily blocked Idaho’s law during the pendency of litigation, the Supreme Court removed that stay in January, allowing Idaho to fully enforce its ban and granting the Petitioner’s request that the Court hear the case prematurely. Oral arguments were heard in April, with the Justices questioning attorneys from both sides about the parameters of the state’s law. The female Justices, including Justice Barrett, appeared highly skeptical of Idaho’s inability to articulate the circumstances under which a provider can safely provide an abortion in the state. However, the conservative Justices–particularly Justices Alito and Thomas appeared open to Idaho’s claim, with Justice Alito unilaterally raising questions about fetal personhood. 

    In the Court’s June 27th Order, rather than ruling on the merits, the Court dismissed the case as improvidently granted–meaning that it effectively decided that it should not have prematurely agreed to hear the case in the first place. Although this decision also allows the lower courts’ injunction to go back into place, giving Idahoans temporary relief, it falls far short of what is needed to protect the rights of pregnant people under federal law. As Justice Jackson stated in her concurrence, the Court’s failure to resolve the conflict between federal and state law “is not a victory for pregnant patients in Idaho[;] it is a delay.” And that delay has dire consequences. In Justice Jackson’s words, while the “Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.” The Court was well-positioned to provide clarity to the dispute before it, but instead, it kicked the can down the road, all but ensuring the issue will land back before the court in the coming months or years. 

    This case, like Alliance for Hippocratic Medicine v. FDA, has an obvious and correct legal answer. At play are state and federal statutes that are in direct conflict with one another. Under well-established Supremacy Clause and federal preemption principles, the state law must give way to federal protections. Although the Court did not take the extraordinary step of ruling to the contrary, its failure to issue a decision on the merits should not be praised as moderate but viewed as an abdication of the judiciary’s responsibility. 

• Iowa:

  • The Iowa Supreme Court has issued a ruling greenlighting the constitutionality of  the state’s ban on abortion after 6 weeks. Although the law briefly went into effect for several days last year, it was quickly blocked by a lower court ruling, allowing Iowans to continue to access abortion until 20 weeks into pregnancy. The 6-week ban, which will likely take effect in the coming weeks includes exceptions for the life or health of the pregnant person. Prior to 20 weeks gestational age, it also includes exceptions for lethal fetal anomalies and cases of  rape or incest if reported to law enforcement within 45 or 140 days respectively. The requirement that victims of rape or incest report the crime against them is of course entirely medically unnecessary and incredibly cruel. Victims deserve to have autonomy over decisions about how to proceed in handling crimes committed against them–that decision should not be a barrier to accessing health care. And we know by now that exceptions for the life or health of the pregnant person are unworkable in practice and have resulted in diminished patient care and a culture of fear and confusion for both patients and providers.
    
    The Iowa Supreme Court decided the case under rational basis review–meaning that the state only had to show that its law was rationally related to a legitimate state interest. Rational basis review is the lowest level of scrutiny that a court can apply in a constitutional challenge, and it is rare that a state is unable to carry its burden under the standard. In a striking dissent, Chief Justice Susan Christensen criticized the majority for a decision that “strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution.” She went on to call out the majority’s failure to contend with the reality that Iowa’s history of regulating abortion excised women from the conversation entirely, writing that “not only did women have no say in the drafting of our state constitution, but they had no input in the statutes being enacted in the state legislature and no ability to vote for the elected officials responsible for these statutes.” 

• Fetal Personhood in State Platforms:

  • The Republican parties in several states, including Texas, Idaho and North Carolina appear to formally endorse fetal personhood ideas, including opposing IVF in their party platforms. For example, the official 2024 party platform in Idaho formally opposes abortion, including the destruction of human embryos–a routine part of the IVF process. Meanwhile in Texas, the GOP’s platform defines life as beginning at fertilization and calls for equal protection for the “preborn.” Although Idaho and Texas are enforcing total abortion bans, stopping at prohibiting abortion is evidently not far enough. If implemented fully, the state’s platforms would result in IVF no longer being available, likely limit the availability of common contraception methods like IUDs, and heighten pregnancy criminalization and surveillance. If fetuses are recognized as full persons under the law, a whole litany of legal consequences and questions necessarily follow. For example, charges akin to child abuse or neglect could be brought against a pregnant person for things like eating the wrong thing during pregnancy or drinking alcohol, and miscarriages could be scrutinized as possible feticide. A federal endorsement of fetal personhood laws could spell the end of abortion access in its entirety.

• Tennessee and Abortion Trafficking:

  • An abortion rights advocate and a Tennessee lawmaker have filed a lawsuit challenging the state’s newly passed abortion trafficking law. The law criminalizes assisting a minor in obtaining an abortion without parental consent. It contains no exception for cases where the pregnancy is a result of rape or incest committed by a parent, and the minor’s own consent to the abortion is not a defense. It is the second law of its kind to pass, following Idaho’s lead. The law took effect on July 1st, with two judges denying the plaintiffs’ request to block its enforcement while the case is under consideration. The lawsuit alleges that the statute is unconstitutionally vague in its failure to adequately define recruitment and that it infringes on their First Amendment rights. Idaho’s nearly identical law has been blocked on First Amendment grounds for the time being.

• Kentucky:

  • In Kentucky, a judge has thrown out a case brought by Three Jewish women challenging the state’s abortion ban. The Judge found that the women, each of whom alleged that they were deterred from expanding their families because of the risks created by the ban, lacked standing to bring the claim because they are not pregnant at this time or currently undergoing fertility treatments.

• Michigan:

  • A Michigan court has blocked three medically unnecessary abortion restrictions following the passage of the state’s reproductive rights constitutional amendment. Specifically, the Court blocked a 24-hour waiting period requirement, mandatory biased counseling and the prohibition on Advanced Practice Clinicians performing abortions. Litigation challenging remaining abortion restrictions will be necessary in any state that passes an abortion rights constitutional amendment.

• The Supreme Court and Gender Affirming Care:

  • After two years of heightening attacks on trans rights and gender-affirming care, the Supreme Court has agreed to hear a challenge to Tennessee’s ban on gender-affirming care for minors. The Court’s opinion will have massive implications for access to care across the country, as about half of the states have enacted bans.  The Court will hear the case on Fourteenth Amendment Equal Protection grounds, testing whether the 6-3 conservative majority will continue to erode civil rights jurisprudence in a post-Roe legal landscape.

• Montana:

  • Organizers in Montana have collected enough signatures to get their abortion rights ballot initiative before voters in November. The Montana Secretary of State will have to approve the verification of the signatures before the initiative can officially move forward.

• Texas Medical Board:

  • The Texas Medical Board has released guidelines for navigating the state’s abortion ban. However, the guidance once again fails to meaningfully clarify the law, leaving providers to navigate the same legal uncertainties that they have been faced with since Texas began enforcing its abortion bans.

• Nebraska:

  • 1 year into the state’s 12-week abortion ban, Nebraska providers reflect on how their experience treating patients has changed. The providers described increased difficulties in counseling patients and treating complicated pregnancies, having to send patients out of state for needed care, concerns about legal gray areas, and increased requests for sterilization.

• South Carolina:

  • Three of the “sister senators” who worked to block South Carolina’s 6-week abortion ban from going into effect have been defeated in their primaries, putting the state at a heightened risk of passing a total abortion ban. 

• Infant Mortality in Texas:

  • New research shows that infant mortality in Texas rose by 13%, as compared to a 2% rise nationally, after the passage of SB8, the state’s ban on abortion after detection of a fetal “heartbeat.” The rise in mortality rates is likely attributable in significant part to the state’s failure to include any exceptions for lethal fetal anomalies in its abortion bans, leaving pregnant people with no choice but to carry doomed pregnancies. The CDC has similarly found that newborn mortality rates in the United States rose in 2022 for the first time since 2001, highlighting the impact of the Dobbs decision and the resultant wave of severe state-level abortion bans.

• Texas and Title IX:

  • Texas Attorney General Ken Paxton and two professors at the University of Texas have filed a lawsuit challenging the Department of Education’s interpretation of Title IX’s anti-discrimination provisions. The relevant guidance prohibits discrimination on the basis of sex, which encompasses pregnancy and pregnancy-related conditions, including abortion. The professors assert in their declarations that they will not follow the guidance and excuse student absences for “elective” abortions–in other words, they are suing for the right to academically penalize students who have abortions, including legal out-of-state abortions, while accommodating students with pregnancy-related absences that the professors deem acceptable. The Professors’ declarations also seem to disclaim their willingness to work with openly transgender or gender-fluid teaching assistants, stating that they will not allow “cross-dressing'' while interacting with students.

• Texas and Gender Affirming Care:

  • The Texas Supreme Court has issued an opinion reversing a lower court’s decision and upholding SB 14, the state’s ban on gender affirming care for minors. The Court found that the law does not infringe on the constitutional rights of the families, physicians and advocates who brought the lawsuit.

REPRODUCTIVE HEALTH DIGEST (6/20/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest takes a deep dive into the Supreme Court’s decision in Alliance for Hippocratic Medicine v. FDA, which preserves access to mifepristone for the time being. We also walk through other critical reproductive health news from around the country. Please read on for the news that you need to know. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed

This Week’s Must Read:

This week’s must-read examines an often overlooked aspect of reproductive freedom–the continuing legal reality that in some states pregnant people are unable to obtain a divorce. In addition to imposing unnecessary barriers to divorce, these kinds of laws pose a serious danger to individuals in domestic violence situations. They also increase the risk of reproductive coercion, a type of abuse wherein an abuser weaponizes pregnancy to control their partner. Reports of this type of abuse have increased substantially since the Supreme Court’s decision overturning Roe. No person’s right to decisional and reproductive autonomy should be dependent upon their marital status. 

Legal Analysis: 

• Mifepristone and Alliance for Hippocratic Medicine v. FDA:

  • On Thursday, June 13th, the U.S. Supreme Court handed down a unanimous decision preserving access to mifepristone–one of two drugs used in the standard medication abortion protocol. In the case, Alliance for Hippocratic Medicine v. FDA, a group of openly anti-abortion doctors and medical groups challenged the FDA’s 2000 approval of mifepristone and subsequent relaxation of its regulations for use in 2016 and 2021. Despite neither taking or prescribing mifepristone, the doctors in the case argued that they have been harmed by the FDA’s approval of the drug. They purport that, as a result of the drug’s availability and regulations for use, they may theoretically at some point have to treat a patient who takes mifepristone, suffers a highly statistically unlikely abortion complication, and ends up in one of the specific doctor-plaintiff’s emergency rooms. On this extraordinarily speculative basis, they sought to remove the drug from the market for the entire country. The Supreme Court rejected their argument, finding that the plaintiffs could not show that they had standing to bring the case. 

    The case was originally filed in 2022 in the Northern District of Texas, Amarillo Division, before far-right anti-abortion Judge Matthew Kacsmaryk. Although the Alliance for Hippocratic Medicine (AHM) is based out of Tennessee, it incorporated an office in Amarillo in order to bring the case specifically before Judge Kacsmaryk; the plaintiffs’ blatant judge shopping has been a central aspect of discussion around the case’s progression and why it was allowed to get as far as it did. At the trial court level, Judge Kacsmaryk functionally rubber stamped the Plaintiffs’ case, despite glaring issues surrounding standing and the statute of limitations. On appeal, the Fifth Circuit rolled back Judge Kacsmaryk’s ruling with respect to the original 2000 approval of the drug, but affirmed his determinations about the 2016 and 2021 changes to the drug’s conditions for use, including the removal of in-person dispensing requirements. The Supreme Court stayed the lower courts’ rulings until its own evaluation of the case was complete, meaning that access to mifepristone has remained unchanged but in-limbo for the past 2 years. 

    Following oral arguments in the case in March, most legal experts speculated that the Justices would throw the case out on standing grounds without reaching the merits, as they seemed highly skeptical that the Plaintiffs could show sufficient harm to justify their claims. In last Thursday’s opinion, authored by Justice Kavanaugh, that is exactly what the Court did. The majority opinion was written in remarkably neutral terms, without any of the inflammatory anti-abortion language and rhetoric employed in the lower courts’ rulings. The Court appeared particularly persuaded by the fact that federal conscience laws explicitly protect a doctor's right to refuse to participate in abortion if it conflicts with their beliefs. As the Court acknowledged, not a single one of the plaintiffs could point to an instance where they encountered a patient suffering a complication from mifepristone, asserted conscience objections, and were required to participate in abortion care anyway. The Court also expressed concern that allowing doctors to assert standing in the way that plaintiffs did would create an “unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.”  

    Although the majority opinion was unanimous, Justice Thomas did write his own concurrence. Notably, he employed anti-abortion language,  referring to providers as “abortionists” and their patients as “clients.” Although he did agree with the majority’s conclusion that the plaintiffs lacked standing, he used his concurrence to take aim at the well-established doctrine of associational standing, a form of third-party standing. He argued that it is inconsistent with constitutional limitations on who may bring a lawsuit and that, although the plaintiffs did not satisfy the doctrine, the doctrine itself should also be revisited in its entirety. Third-party standing has traditionally played an important role in civil rights litigation, including abortion cases where providers have been permitted to represent their patients' interests in challenging abortion restrictions. Although the Plaintiffs in this case attempted to improperly apply the doctrine, eliminating it altogether would undercut a key mechanism for enforcing civil rights. 

    Following the Court’s ruling, access to medication abortion remains unchanged for the time being. However, it is all but certain that this case will continue in some form or another. Prior to the Supreme Court’s ruling, Idaho, Kansas and Missouri each sought to intervene in the case, arguing that their own interests are harmed by the use of mifepristone. The Supreme Court denied that request, but Judge Matthew Kacsmaryk approved it at the district court level. He will now have to determine whether the states can continue the lawsuit in his own court, despite their lack of a legal connection to the Northern District of Texas. If they continue with the case, in Texas or elsewhere, the states will have to overcome standing challenges and satisfy the court that they have been concretely harmed by the FDA’s actions with respect to mifepristone. 
    It is also worth taking a moment to remember that although the Supreme Court’s decision is a positive one, it was also the obvious and only correct conclusion that the Court could have reached. A decision to the contrary would have been an extraordinary break with precedent and put a nail in the coffin of any claim of judicial neutrality with respect to abortion cases. Additionally, abortion rights remain before the high court as we await its ruling in Moyle v. United States, the case about whether Idaho can enforce its draconian abortion ban over federal emergency stabilizing requirements created by the Emergency Medical Treatment and Active Labor Act (EMTALA).
    

What else is happening in access? 

• Missouri: A Missouri judge has ruled against clergy members representing seven faiths in their challenge to the state’s abortion ban. The clergy members argued that the state improperly violated the separation of church and state and adopted only one subjective religious view of when life begins–one that is not consistent with other religious and secular views. However, Judge Jason Sengheiser has ruled that the belief that life begins at conception is not necessarily a religious belief. Several of the clergy members involved in the lawsuit shared their own abortion stories. Pro-abortion religiously based lawsuits are a unique feature of the post-Roe legal landscape, diverging from the typical view that the anti-choice movement somehow holds a monopoly on religious views of abortion. In a similar case out of Indiana, the state’s abortion ban is blocked for cases where it conflicts with a person’s sincerely held religious beliefs. 

• South Dakota: A South Dakota anti-abortion group, the “Life Defense Fund,” has filed a lawsuit to try and stop an abortion rights ballot initiative from going before voters in November. If passed, the pro-choice measure would prohibit the government from interfering with first-trimester abortions, allow reasonable government regulation in the second trimester, and allow prohibition in the third trimester with exceptions for the life or health of the pregnant person. It received almost 20,000 more signatures than what was necessary to put it on the ballot, and South Dakota Secretary of State Monae Johnson validated the measure in May. The Life Defense Fund complaint alleges a series of flaws in the ballot initiative process, including invalid signatures, fraud, and certain technical and procedural errors. Dakotans for Health, the group behind the ballot initiative, called the move a “last-ditch effort to undermine the democratic process.” 

• Florida: As Florida advocates continue to fight to get abortion on the ballot in November, a new dispute about the related financial impact statement has arisen. Floridians Protecting Freedom, the group advocating for the initiative, filed the lawsuit arguing that the financial impact statement, which was written prior to the state supreme court issuing two major abortion decisions, was no longer accurate and contained out-of-date caveats relating to litigation that is now settled. A Leon County Circuit judge issued an order requiring a rewrite of the statement; however, the state immediately appealed and the appeals court stayed that order. The court also rejected a request to send the case directly to the state supreme court to expedite the legal proceedings. 

• Accommodations for Abortion: A federal judge out of Arkansas has dismissed a lawsuit brought by 17 states challenging the Equal Employment Opportunity Commission’s rule that requires the same routine accommodations for abortion patients as for other pregnancy-related conditions. In his dismissal, the judge found that the states lacked standing. Meanwhile, a federal judge out of Louisiana came to the exact opposite conclusion in a separate challenge to the same EEOC rule. Judge David Joseph granted the U.S. Conference of Catholic Bishops and Louisiana and Mississippi relief from complying with the abortion-related provisions of the EEOC’s rule while litigation plays out. The rule went into effect on Tuesday, June 18th. 

• IVF and the Southern Baptist Convention: The Southern Baptist Convention has voted in favor of a resolution opposing IVF.  Although this is not governmental action, it is a request for the largest protestant denomination in the country to oppose the treatment on fetal personhood grounds at a time when attacks on contraception and reproductive health are at an all-time high. These kinds of resolutions also signal to politicians what portions of their electorate may support. The vote came the same month that Senate Republicans voted to block a bill that would protect IVF nationwide and a bill that would have created a federal right to access contraception. 

• IVF in Alabama: The Alabama families whose lawsuit resulted in the state Supreme Court finding that frozen embryos were children under the law are now challenging the law protecting IVF that was passed in response to that decision. These families brought a claim for wrongful death of a child after their frozen embryos were destroyed in the clinic. The Alabama Supreme Court sided with them, causing IVF clinics around the state to shut down–at least one permanently so. In response to the ruling and the resultant clinic closures, the legislature scrambled to pass a law safeguarding IVF in the state by shielding providers from civil and criminal liability. The families now argue that the shield legislation violates their constitutional rights. The issue could again land before the state’s supreme court. 

• Arkansas: Arkansas advocates are working to get the 90,704 signatures needed to get an abortion rights ballot initiative before voters in November. The right-wing group Family Council used a Freedom of Information Act (FOIA) request to obtain information about paid canvassers working to collect signatures and posted a list of 79 people on their website, placing the canvasser’s safety and privacy at extreme risk. 

• California: The California Senate has approved a bill that would prohibit school districts from requiring educators to disclose a child’s pronoun change to their parents. California’s protective legislation stands in stark contrast to the legislative attacks on trans and other lgbtq+ youth around the country, including forced outing bills that require school administrators to ‘out’ gender diverse children to their parents. 

• Gender-Affirming Care in North Dakota: A North Dakota judge has declined to block enforcement of the state’s gender affirming care ban for minors during the pendency of litigation, finding that the plaintiffs did not meet the standard necessary for a preliminary injunction. 

• Gender-Affirming Care in Florida: In a significant win for trans rights, a federal district court judge out of Florida has struck down Florida’s ban on gender affirming care for minors, as well as a number of restrictions on care for adults. Judge Robert Hinkle found that the ban was unconstitutional and that the state could not show that it has a legitimate interest at stake, stating that “whether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest.” The state will appeal Judge Hinkle’s decision up to the 11th Circuit Court of Appeals. This ruling comes as states across the country have enacted bans on gender affirming care, and while the issue has not yet reached the Supreme Court, it is all but certain to do so in the near future. 

• Abortion On the Ballot: With abortion on the ballot in states across the country this November, it is important to remember that state-level wins do not guarantee the future of abortion access or signal the end of the fight. An anti-choice administration or Supreme Court could functionally invalidate those measures by passing a federal abortion ban, enshrining fetal personhood into our laws or enforcing the Comstock Act against abortion. State passage of abortion rights amendments also do not automatically do away with pre-existing abortion restrictions in that state. This means that in states with legislatures hostile to abortion, advocates will still have to go through the process of litigating the constitutionality of bans even once a constitutional amendment has been passed.

• Doctors Join the Fight: With the proliferation of post-Dobbs anti-abortion laws, left-leaning doctors are starting to run for office in hopes of taking matters into their own hands to improve healthcare legislation and regulation. 
  

REPRODUCTIVE HEALTH DIGEST (6/5/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest covers important legal developments out of Texas, Louisiana, Tennessee, and Indiana, as each of the states continues to fight to restrict abortion access and reproductive freedom. We also delve into ongoing bodily autonomy news from around the country. Please read to the end for the news that you need to know. 

In case you missed it in the last Digest, we wanted to take this opportunity to let you know about the expansion of our Policy Resource Hub for Reproductive Health. The Hub is an exclusive legal database where we update the state of the law every single day in every U.S. state and territory - so you’re always up to speed. Up until now, our Abortion Laws by State tool has provided linked and cited answers to questions about if and when abortion is legal in a state; what exceptions, exemptions, and affirmative defenses exist; and what providers must show and report in order to operate within those exceptions. We are so excited to announce that we have now added answers to your questions about the law regarding minors’ access to abortion and related reproductive care in every state. Please subscribe at L4GG.org/Repro for access and share amongst your network!

This Week’s Must Read:

This week’s must-read story comes out of Texas, where a family law case threatens the future of IVF in the state. A divorcing couple in the state is locked in a dispute over whether their frozen embryos should be treated under Texas property laws or child custody laws. Although the trial court and appeals court each rejected the argument that Dobbs and Texas’s abortion bans combine to create an inference that frozen embryos should be treated as children, the case has been appealed to the Texas Supreme Court. If the Court hears the case, it could issue a ruling similar to the Alabama Supreme Court’s finding that frozen embryos are children under the law, upending access to assisted reproduction for Texas families. 

Legal Changes at the State Level: 

• Brief Overview: 

  • Louisiana: Louisiana has passed a first-of-its-kind law classifying the abortion drugs mifepristone and misoprostol as controlled substances, despite their exemplary safety records and the fact that abortion is already entirely banned in the state. 

  • Tennessee: Tennessee has passed a law criminalizing “abortion trafficking,” becoming the second state to do so. The law criminalizes recruiting, harboring or transporting an unemancipated minor for abortion care without their parent or legal guardian’s consent. 

  • Texas: The Texas Supreme Court has issued a ruling in Zurawski v. Texas, the case brought by 20 Texas women and 2 doctors harmed by the state’s abortion bans. The Court determined that the law is sufficiently clear and any harm that the women suffered is a result of their providers inaccurately interpreting it. 

  • Indiana: Last week, an Owen County, Indiana Court heard arguments in a case challenging the state’s abortion ban. The case was brought by abortion providers who argue that the law’s definition of “serious health risk” is unclear and unconstitutionally narrow and that doctors are forced to deny care as a result of the ambiguity. The Plaintiffs also challenge the law’s exclusion of mental health from its life or health exceptions, explaining that this exclusion of “patients suffering from psychological and psychiatric conditions, including suicidal ideation, is both inconsistent with best medical practices and will harm pregnant Hoosiers.” They also note that failing to include mental health ignores the medical reality that pregnancy can cause issues around medication management and safety for those taking certain psychiatric medications. The Court has not yet issued any rulings, but we will be watching this case closely.
    

Deeper Legal Analysis 

• Louisiana: 

  • Louisiana’s Republican-led legislature and Governor have passed a first-of-its-kind law classifying the abortion drugs mifepristone and misoprostol as controlled substances. Abortion, including medication abortion, is already entirely banned in Louisiana, with extremely narrow and unworkable exceptions for the life or health of the pregnant person. Regardless, lawmakers have moved to further penalize possession of either medication without a prescription–placing them in the same category as drugs like opioids, Xanax, and Valium. The classification of a drug as a controlled substance also allows for additional tracking and monitoring of drug distribution, increasing risks of harmful pregnancy surveillance and criminalization. 

  • In addition to being redundant to Louisiana’s existing abortion ban, the law is also inconsistent with the safety and efficacy records of mifepristone and misoprostol. Taken together, either through telemedicine or in a clinical setting, the drugs are extremely safe and highly effective for terminating pregnancy in the first trimester. They also do not have any addictive properties like other designated controlled substances. 

  • The bill began as a measure to create the crime of “coerced abortion,” for circumstances where a pregnant person is given abortion medication without their knowledge or consent. The designation of the drug as a controlled substance was added by Senator Thomas Presly. The law itself allows for fines and prison time of up to five years for those found in violation. It does not apply to pregnant people who possess the drug for their own use, seeming to follow other ban states’ reticence to actually penalize the pregnant person themselves. Instead, it appears to take aim at the networks of people who may help a pregnant person obtain an abortion. This is likely in response to the rise in medication abortions seen in a post-Dobbs world. Proponents of the bill claim that it will help keep pregnant people safe from those who may try to end their pregnancies without their knowledge. But, the reality is that abortion bans actually empower abusers to wield pregnancy and fear of punishment under abortion laws as tools for control. 

  • The designation of mifepristone in Louisiana comes as the country awaits a ruling from the Supreme Court in Alliance for Hippocratic Medicine v. FDA, the case brought by anti-abortion doctors and groups challenging the FDA’s approval and treatment of mifepristone. 

• Tennessee: 

  • Tennessee has become the second state behind Idaho to pass a law criminalizing “abortion trafficking.” The bill, HB 1895, makes it a Class A misdemeanor to recruit, harbor, or transport an unemancipated minor for abortion care without their parent or legal guardian’s consent. Violators could face nearly a year in prison. 

  • Although proponents of the bill, and the one like it in Idaho, argue that it is meant to protect minors while preserving parental rights, these kinds of laws have immense potential to harm minors by cutting them off from critical support systems at a vulnerable time. Many minors do disclose unplanned pregnancies to their parents, but those who are not able to safely do so may turn to a trusted adult, like a non-parent relative, for support. Without that support, minors face an uphill battle in independently accessing care. They would have to navigate the patchwork of laws in other states and find a state that permits abortion without parental involvement (or navigate the judicial bypass system), obtain an appointment, pay for the procedure and associated expenses, and travel out of state–likely missing work or school. In other words, abortion trafficking laws detract from minors’ decisional autonomy about their own bodies. And, their enactment on top of preexisting total abortion bans demonstrates anti-abortion legislators' zeal to restrict reproductive health care by any means possible. 

  • Whether abortion trafficking laws will stand up to judicial scrutiny is an open question at this time. Idaho’s extremely similar law was blocked by a federal judge on First Amendment speech and expression grounds. In early May, the Ninth Circuit Court of Appeals heard oral arguments in the case, with at least two of the three judges appearing skeptical of the state’s framing of the newly-created crime as “trafficking.” The Court has not issued its ruling yet, and although a ruling holding the Idaho law unconstitutional would not be precedential over Tennessee’s law, it would likely inform how other states craft and pass similar laws. 

• Texas: 

  • Last week, the Texas Supreme Court issued a devastating ruling in Zurawski v. Texas, finding that the narrow exceptions to the State’s abortion ban are sufficiently clear, despite employing ambiguous non-medical language. 

  • The lawsuit was brought by 20 Texas women and 2 doctors who were each harmed by the lack of clarity in the State’s law. Each of the women’s stories is devastating, and several of the Plaintiffs have suffered permanent damage to their health and fertility as a result of their inability to access the care that they needed and deserved. The lawsuit was the first of its kind to be brought directly by pregnant people harmed by bans, rather than abortion providers. Notably, the Plaintiffs did not seek to actually overturn Texas’s bans–instead, they merely sought clarity about when providers can intervene to help their patients without risking severe penalties. 

  • In its Opinion, the Court threw blame for the harm caused by Texas’s laws squarely at the feet of providers, stating that a “physician who tells a patient, ‘[y]our life is threatened by a complication that has arisen during your pregnancy, and you may die…’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment.” But that’s exactly the problem, isn’t it? Doctors shouldn’t be charged with making a multi-step legal assessment; instead, they should be permitted to practice standard-of-care medicine consistent with their training, experience, and the facts of a particular case before them. 

  • The Court also dismissed the idea that the law discriminates on the basis of sex, finding instead that the classification is not directed at pregnant women, but at the procedure of abortion itself. With respect to the right to life, the Court stated that “the history of abortion regulation in Texas demonstrates the Legislature’s unmistakable commitment to protecting the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life,” echoing a fetal personhood framework that treats the pregnant patient and the fetus on equal terms. 

  • Similar patient-led litigation is ongoing in other states, including Tennessee and Idaho. And, the U.S. Supreme Court is currently considering whether Idaho’s abortion ban violates federal requirements under the Federal Emergency Medical Treatment and Active Labor Act (EMTALA). In the EMTALA case, the Court has the potential to issue a ruling similar to Texas’s-sidestepping the question of the harm that abortion bans are creating by claiming that blame lies with confused providers or hospitals, and not with the legislators who wrote the laws or the courts that interpret them. 

What else is happening in access? 

• Judge Catherine Eagles has finalized her April 2024 Order striking down several of North Carolina’s abortion restrictions as preempted by the FDA. North Carolina’s 12-week abortion ban has some of the most onerous restrictions and barriers in place for patients accessing care, and Judge Eagles’ Order alleviates several of those as they relate to access to medication abortion. 

• The Louisiana legislature has sent a “don’t say gay or trans” bill to the Governor Louisiana don’t say gay bill going to Governor Jeff Landry for his signature.   The bill prohibits discussion of gender, sexual orientation, or sexuality outside of the approved curriculum. 

• South Dakota anti-abortion activists are reportedly calling voters who signed in support of the state’s proposed abortion rights ballot initiative and asking them to rescind their signatures. 

• The Southern Baptist Convention that will take place in June plans to hold a vote on a resolution regarding whether the group should oppose in vitro fertilization and ask its adherents to do the same, citing fetal personhood-style arguments. Although this is of course not governmental action, Baptists make up the largest protestant denomination, and their agenda-setting can act as a barometer for what the religious right would like to see politicians support. Many still decry warnings about attempts to limit contraception and fertility treatments as unrealistic fear-mongering fueled by reproductive rights activists, but groups around the country are working to do exactly that. 

• A new California law allows Arizona providers to perform abortions in the state. The law was passed as a response to the Arizona Supreme Court’s ruling allowing an 1864 total abortion ban to be enforced in the state, and it is reflective of an ongoing effort by blue states to expand access for individuals in ban states. 

• Rolling Stone obtained the survey that the Florida Family Policy Council’s lobbying arm–Florida Family Action–uses to evaluate candidates for potential support. The survey inquires about whether the potential candidates support Florida’s abortion ballot initiative, when they think abortion should be limited, and what exceptions they would support. It also asks about other related issues, like the candidate's view on gender identity and sexual orientation. 

• A Florida Judge has ordered a revised financial impact statement in connection with the state’s abortion rights ballot initiative, as the previous statement did not reflect the recent state Supreme Court rulings allowing a 6-week ban to go into effect and rejecting a challenge to the previously enforced 15-week ban. 

• Nebraska pro and anti-abortion groups are working on competing ballot initiatives–each hoping to get their agenda before voters in November. Although pro-choice advocates are working to protect pre-viability abortion in the state’s constitution, anti-abortion activists have put forth a competing measure that would enshrine the state’s current ban on abortion after 12 weeks. 

• Research continues to show that medical residents are avoiding states where abortion bans are in place, limiting their ability to access a full education and provide full spectrum reproductive healthcare without fear of civil, criminal or professional consequences. This will have a downstream effect on the expansion of maternity care deserts and the ability of patients to access quality care in their home states. 

• As the election nears in November, candidates continue to speak out about their positions on abortion and reproductive health generally. As we have discussed previously in this Digest, the candidates' willingness to sign a federal abortion ban is not the only way to effectively outlaw abortion in all fifty states–many conservative politicians hope to use the Comstock Act to do just that, without the need for congressional approval. 

• Travel and wait times for Florida patients needing abortion care have significantly increased following the state’s 6-week abortion ban going into effect. According to research gathered by Middlebury University economics professor Caitlin Myers, wait times have increased at “30% of the abortion clinics in the states closest to Florida.” And, prior to the ban, “the average Florida resident lived 20 miles from a clinic” and had a five-day wait to access care, but after the ban, the driving distance increased to 590 miles “and the wait time expanded to almost 14 days,” forcing people to wait until later in their pregnancies to terminate. 

• Reproductive health and abortion rights are highly intersectional issues, impacting nearly every other issue area–this piece from the National Women’s Law Center highlights how access to reproductive health is critical for the well-being and decisional autonomy of people with disabilities. 

• Senator Marco Rubio and other anti-choice politicians have sent a letter to the Environmental Protection Agency suggesting that the use of mifepristone for medication abortion poses a risk to the American water system. In addition to lacking any sound scientific evidence to support this claim, the letter also demonstrates a stunning lack of understanding about pregnancy and miscarriage. In it, the authors state that as a result of mifepristone, fetal remains are “unbelievably” being flushed into America’s wastewater system. This assertion simultaneously ignores and stigmatizes the daily reality that countless pregnant people who suffer miscarriages at home face. 

• Iowa Attorney General Brenna Bird has agreed to resume paying for emergency contraception for victims of sexual assault, after discontinuing the support over a year ago purportedly in connection with an audit. The state will not pay for abortion services for rape victims. 

• Democrats in the Senate have again introduced legislation to protect IVF, as state-level threats to fertility treatments increase. 
  

REPRODUCTIVE HEALTH DIGEST (5/23/24)

Developments in Abortion, Autonomy, and Access: 

We have a great deal of reproductive health and bodily autonomy news to report on this week from both the federal level and states across the country, including Arizona, South Carolina, Louisiana, and Ohio. To ensure that we hit all of the important points while still keeping things succinct, we are breaking from our usual format to provide you with a broad overview of all of the news you need to know. 

We also wanted to take this opportunity to announce the expansion of our Policy Resource Hub for Reproductive Health to include research on the availability of abortion for minors nationwide. The Hub is an exclusive legal database where we update the state of the law every single day in every U.S. state and territory - so you’re always up to speed. Up until now, our Abortion Laws by State tool has provided linked and cited answers to questions about if and when abortion is legal in a state; what exceptions, exemptions, and affirmative defenses exist; and what providers must show and report in order to operate within those exceptions. We are so excited to now include answers to your questions about the law regarding minors’ access to abortion and related reproductive care in every state. We invite you to subscribe to and use this resource in your own work and advocacy and to share it with anyone who may benefit from the information included.

This Week’s Must Read:

In this Digest, we have continually discussed how abortion bans and restrictions place providers in untenable positions that result in worsened patient care. This week’s must-read comes from The Nation and describes how that reality is playing out in healthcare facilities across the country, harming patients, forcing providers to practice substandard medicine, and resulting in OB-GYNs leaving ban states en masse. Dobbs allowed states to legislate the practice of medicine through subjective moral, ideological, and theological lenses that are inconsistent with the practice of medicine and the complex realities of pregnancy. As sociologist and researcher Carole Joffe points out in the article, Dobbs gave “the American people a window into how dangerous pregnancy can be that was not there before[;] [p]eople can say they don’t care, which is the actual anti-abortion position, but at least now they can’t say they don’t know.”

Reproductive Rights and Health Equity News:

• In Arizona, Governor Katie Hobbs has signed a bill repealing an 1864 total abortion ban that the state Supreme Court ruled was enforceable last month. However, that repeal bill will not go into effect until 90 days after the state legislature adjourns, likely in late June or July. The state Supreme Court has now granted a stay of its decision – delaying enforcement of the ban for another 90 days. This means that the earliest the ban can be enforced will be September 26th. Depending on when the state’s legislature adjourns, this could mean that the ban briefly goes into effect in the fall, interrupting care and creating unnecessary confusion around the state of the law.

• A South Carolina state judge has ruled that the state can fully enforce its 6-week ban, despite a lack of clarity around the legislation’s definition of fetal cardiac activity. The state purports to ban abortions after detection of fetal cardiac activity, which the state has interpreted as occurring around six weeks gestational age. However, medical experts argue that this is an inaccurate characterization of a fetal heartbeat, as the actual formation of the heart doesn’t occur until around nine weeks into pregnancy. The constitutionality of the state’s 6-week abortion ban has already been affirmatively decided by the Court. Now, rather than challenging the ban in its entirety, advocates asked that it not be enforced until factual questions around the meaning of a detectable fetal heartbeat could be answered. The court declined this request; it based its ruling not on the actual clarity of the ban, but on the fact that legislators on both sides of the issue had previously characterized it as a 6-week ban. 

• The Louisiana House has passed a bill that would classify mifepristone as a controlled substance. The first-of-its-kind law would make it a crime punishable by jail time for anyone to possess the drug without a prescription, with the exception of the pregnant person. This new controlled substance bill will now make its way to the state senate and then the Governor’s desk, where he is expected to sign it into law. Notably, Louisiana is already operating under a total abortion ban, so this additional restriction shows continuing legislative enthusiasm for limiting the availability of reproductive health care in the state. This same legislature recently shot down proposed amendments to the state’s ban that would have created exceptions for rape or incest.

• The 11th Circuit Court of Appeals issued a ruling finding that a sheriff’s office in Georgia’s failure to cover an officer’s gender transition-related health care under its employee health plan amounts to a violation of anti-discrimination law. This ruling is binding on Georgia, Florida and Alabama–three states that have passed extremely restrictive anti-LGBTQ+ laws, including bans on gender-affirming care for minors. The Court’s Opinion reasoned that the health plan’s blanket denial of coverage for gender-affirming surgery plainly amounts to discrimination on the basis of transgender status–a status protected by the U.S. Supreme Court in Bostock. With the recent proliferation of anti-trans legislation across the country, it seems imminent that the issue of access to gender-affirming care will land before the Supreme Court in the near future. 

• South Carolina Governor Henry McMaster has signed into law a ban on gender-affirming care for minors, making it the 25th state to do so. The law takes effect immediately, and groups on the ground are preparing to provide resources to families who need assistance to travel out of state for care. 

• Kansas Governor Laura Kelly has vetoed a fetal personhood bill that would have allowed child support payments to begin at conception, including medical and pregnancy-related expenses. S.B. 232 specifically excluded medical expenses incurred in cases where the pregnant person has a non-emergency abortion. Although supporters of the bill claim that it is intended to support pregnant people, these types of bills weave the concept of fetal personhood into the fabric of a state’s law, strengthening the legal groundwork for future laws restricting reproductive freedom. 

• A clash between blue states that have enacted shield laws protecting abortion patients and providers and red states that are seeking to close any gaps in their abortion bans is likely imminent. These shield laws, which sometimes allow providers to prescribe abortion medication directly into ban states under the protection of their own state law, have not yet been tested in litigation, but thus far they have been an effective tool in allowing thousands of pregnant people to access otherwise unavailable care. John Seago from Texas Right to Life has indicated that the group is looking for the right set of circumstances to bring a challenge to the protective laws. 

• Anti-abortion attorney Jonathan Mitchell has made a career out of challenging abortion rights and advocates, largely through legally unsustainable scare tactics. At present, he is directly targeting women who have traveled out of state to obtain lawful abortions with deposition requests. These types of cases may be designed to set up a challenge between abortion-ban states and those with shield laws in place, testing the strength of those protections. 

• Clarendon County, Texas has voted unanimously to reject an effort to designate itself as a Sanctuary City for the Unborn, citing concerns that abortion is not the kind of thing that the city should be involving itself with–particularly as Texas already has banned abortion outright. 69 cities in the U.S. have declared themselves to be so-called “Sanctuary Cities,” with over 75% of those located in Texas. The efforts, led by anti-abortion activist Mark Lee Dickson, have cities declare abortion illegal within their city limits (even where a state has already banned the procedure), and aim to deter citizens from traveling through the county or city to access abortion elsewhere. 

• A Planned Parenthood-led lawsuit in Ohio has broadened its legal challenge to restrictive laws surrounding medication abortion. In 2021, prior to Dobbs and Ohio’s passage of an abortion rights constitutional amendment, Planned Parenthood filed a lawsuit targeting a state law requiring in-person administration of medication abortion despite the proven safety of telehealth abortion care. In light of Issue 1 enshrining pre-viability abortion rights into the state Constitution, that lawsuit has been expanded to also challenge 1) the prohibition on advanced practice clinicians from prescribing medication abortion; and 2) the prohibition on prescribing mifepristone in a way that differs from federal regulations. Although the addition of abortion-protective language to the state Constitution likely renders many of Ohio’s remaining abortion restrictions unconstitutional, lawmakers appear poised to continue fighting challenges brought against those laws. And, the Republican-led legislature is unlikely to repeal any conflicting restrictions of its own volition. 

• A Tennessee woman has opened up about her story of how denial of abortion care following a devastating fetal diagnosis impacted her future fertility. Like many other pregnant people post-Dobbs, despite the non-viability of her pregnancy, Breanna Cecil was not able to obtain an abortion in her home state because of Tennessee’s abortion ban. Although she was eventually able to travel to Chicago to obtain the care she needed, after returning home she developed a fever and discovered that there was retained tissue from the fetus. This ultimately resulted in an abscess requiring the removal of one of her fallopian tubes and ovaries. Had she been able to quickly and simply obtain the care she needed in her home state, this series of events would likely have never occurred. Stories of pregnant people losing their fertility potential as a result of abortion laws have been all too common post-Dobbs, and it is important to remember that for every person whose story breaks through to the media, there are countless others who suffer privately. 

• Kansas abortion providers have filed a lawsuit in state court asking the court to block enforcement of a law that would require them to report on the reasons why their patients are seeking abortion care. Although Kansas Governor Laura Kelly initially vetoed the bill, the state Legislature overrode that veto. The bill would require providers to ask about and report on entirely medically unnecessary information, including whether the abortion is sought because it might interfere with the pregnant person’s career or education, and whether the patient received financial assistance from a nonprofit to obtain the abortion (ie: an abortion fund). Opponents of the law have decried it as invasive and intended to shame and intimidate patients out of obtaining lawful care.

• Although presidential hopeful Donald Trump has stated that he would not sign a federal abortion ban into law, there are myriad ways in which he could easily and effectively eliminate access across the country without the need to ever explicitly ban it. These include utilizing the FDA to limit access to mifepristone, instructing the DOJ to enforce the Comstock Act, or supporting efforts to weave fetal personhood into federal law. Most recently, Trump faced criticism for comments in an interview that he was “looking into” the possibility of regulating access to contraception. 

• The Missouri legislature’s attempt to raise the threshold required for passing a constitutional amendment, ahead of a vote on an abortion rights ballot initiative, has failed. Democratic lawmakers filibustered the measure for over 50 hours. Efforts to use the courts and state legislatures to block abortion ballot initiatives have been seen in states all over the country, including in Ohio and Florida. 

• South Dakota and Colorado advocates have succeeded in their efforts to get abortion on their states’ ballots for November. In South Dakota, Secretary of State Monae Johnson has validated the Petition, acknowledging that it exceeded the necessary number of signatures to qualify. And in Colorado, the Secretary of State has similarly given the greenlight to an initiative that would extend legislative protections to the state’s Constitution. Although abortion is currently legal in Colorado, amending the constitution to include reproductive rights would ensure that those protections cannot be easily overturned by a change in state administration. Such a ballot initiative would also lend legal weight to the state’s shield laws. 

• Republican Senators Ted Cruz and Katie Britt have unveiled legislation that would purportedly protect IVF by denying Medicaid funding to any state that bans the procedure. The bill comes months after the Alabama Supreme Court issued a ruling finding that frozen embryos are children under the law, resulting in the temporary cessation of IVF in the state and the permanent closure of at least one clinic. The irony of this bill’s introduction, which comes months after Alabama’s Supreme Court issued a ruling finding that frozen embryos are children under the law, by two anti-abortion senators who helped create the circumstances under which IVF is under threat is glaring. 

• For an updated look at where abortion may appear on the ballot this November, take a moment to read through this write-up by the Associated Press. Abortion is certain to be on the ballot in Maryland, South Dakota, Florida, and Colorado, and many other states have similar efforts underway. 

• Texas has appointed anti-abortion doctor Ingrid Skop to its maternal mortality review committee. Dr. Skop is one of the doctors involved in the lawsuit challenging the FDA’s approval of mifepristone, and has made a career out of testifying against abortion rights, including before the U.S. Congress. She is also the Vice President and Director of Medical Affairs for the Charlotte Lozier Institute, the anti-abortion research arm of Susan B. Anthony Pro-Life America. 

• In this Article, Truthout explains how the intersection of abortion bans and immigration status makes accessing care in states such as Texas, Florida, and Arizona extremely difficult–if not impossible–for undocumented people.
  

REPRODUCTIVE HEALTH DIGEST (5/9/24)

Developments in Abortion, Autonomy, and Access: 

A great deal has happened in reproductive health law at both the state and federal levels in the past two weeks. In this week’s Digest, we take a look at changes to the law in Florida, Arizona, and North Carolina, as well as how abortion is shaping the national conversation around the upcoming election season. We also cover health equity and bodily autonomy news from around the country. Please read to the end for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s must-read comes out of Texas, where a man has retained anti-abortion attorney Jonathan Mitchell to investigate his partner’s out-of-state abortion. The abortion took place in Colorado where the procedure is protected, and traveling between states to obtain medical care is entirely lawful. However, the petition reportedly claims that there are grounds for a lawsuit under either  Texas’s wrongful-death statute or SB8–the state’s  6-week abortion ban, which allows private citizens to bring a lawsuit against anyone who “aids or abets” an illegal abortion. Colorado has a shield law in place aimed at protecting individuals who travel out of state for care from investigation or prosecution. This lawsuit may be one of the first challenges that we see to these reproductive health care shield laws.

Legal Changes at the State Level: 

• Brief Overview: 

• Florida: Florida’s 6-week abortion ban has taken effect, cutting off yet another important access point for the South and rousing pro-choice sentiment in the red state.

• Arizona: Arizona’s Governor signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month.

• North Carolina: A federal judge has ruled that aspects of North Carolina’s 12-week abortion ban relating to medication abortion are unlawful. Specifically, Judge Catherine Eagles determined that the state’s provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

• Federal: In an interview with Time Magazine, presidential hopeful Donald Trump, who has flip-flopped on the issue of abortion, was asked about his current position. Specifically, he was asked questions about whether he would have a problem with states imposing laws to surveil people’s pregnancies in furtherance of state abortion bans. He responded that he believes that states might do that and repeatedly stated his position that all issues around abortion are up to the states. When asked if he was comfortable with pregnant people being directly prosecuted for abortions, he stated that it’s irrelevant whether he is comfortable with it because it is up to the states. Although there has been a great deal of debate around the question of a federal abortion ban (and such a ban would be devastating), the reality is that full deferral to the states is in itself an extreme position. It allows the most draconian abortion bans to remain lawful, despite the measurable harm that they cause. And, an explicit federal abortion ban would not be necessary to functionally eliminate access on a national scale. Actions like enforcing the Comstock Act or wielding the FDA to limit access to certain drugs could achieve a similar result without the need for congressional approval.
  

Deeper Legal Analysis 

• Florida: 

• Florida’s Florida’s 6-week abortion ban took effect on May 1st, dramatically narrowing the timeframe for abortion availability from 15 weeks and choking off yet another access point in the South. The law was signed by Governor Ron DeSantis in spring 2023, but it did not immediately take effect while the state Supreme Court weighed whether the constitution protects the right to reproductive autonomy. 

• The newly enforced law, misleadingly titled the “Heartbeat Protection Act,” restricts abortion after the gestational age of the embryo is determined to be more than 6 weeks. It includes narrow and vaguely written exceptions to save the life or health of the pregnant person, expressly excluding mental health from the definition of health. It also allows termination prior to the third trimester if two physicians certify that the fetus has a fatal abnormality, or prior to 15 weeks if the pregnancy is a result of rape, incest, or human trafficking and the victim shows proof that they reported the crime. Of course, we know by now that these kinds of exceptions rarely work in practice and throw both doctors and patients at the mercy of legal uncertainty, and requirements that victims report the crime in order to obtain care are medically unnecessary and cruel.

  The enforcement of this 6-week ban devastates the availability of abortion in an already access-deprived American South. Florida was one of the last states in the region to not enforce a total or extremely narrow abortion ban, and according to data from Guttmacher 1 in 3 abortions in the South took place in Florida last year. With the law in place, the closest state for patients to receive care is North Carolina–three states north. And, care in North Carolina is limited by the state’s own 12-week abortion ban. This is particularly problematic for patients who must take time off work to travel a long distance, as well as save up money for travel, childcare, and the procedure itself. 

  The final days before the 6-week ban took effect saw scenes of chaos and urgency at abortion clinics, with clinics staying open longer hours and seeing as many patients as possible. Doctors reportedly contacted patients who had delayed their abortion under the 15-week ban in order to save money for the procedure to remind them that they have little time left before the window for care closes. This chaos is not new, with abortion bans having spread all over the country and patients having to travel increasingly long distances to access basic care–even in emergency situations. The 6-week ban will further the ongoing medical crisis heralded by Dobbs and endanger the lives of countless pregnant people, particularly people of color and those who live in poverty. 

  The enforcement of the 6-week ban has increased attention on the Florida abortion rights ballot initiative that will go before voters in November. Advocates must get 60% of the vote for the initiative to pass, and the race is likely to be a close one. Anti-abortion interference with the democratic process has become a feature of ballot initiative efforts around the country, and activists opposed to the amendment have already indicated that if it passes they are prepared to file a lawsuit challenging the initiative on fetal personhood grounds. 

• Arizona: 

  • Arizona’s Governor Katie Hobbs has signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month. Prior to the Court’s ruling, the governing law in Arizona permitted abortion until 15 weeks into pregnancy.

    The Court’s decision to allow the 1864 ban to be enforced sent shockwaves through the country, becoming a signal of how extreme the U.S. has become on abortion post-Dobbs. Many were quick to point out that the Civil War-era law was enacted before Arizona even became a state, and long before women had the right to vote–let alone participate in the legislative process. Calls for the legislature to act to repeal the ban began swiftly after the release of the Court’s decision, with politicians who had supported the ban facing immediate political backlash and scrutiny.  Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    After several attempts to gain the legislative support needed to repeal the ban, the repeal bill finally made its way to Governor Hobbs’ desk, with Republicans who broke with their party to support it facing heavy criticism from anti-abortion groups and activists. Despite the repeal, the Supreme Court’s decision is likely to galvanize voters on Arizona’s abortion rights ballot initiative this November, similar to what is happening in Florida. The fact that the state has a high court that is willing to legitimize an 1864 law with no exceptions other than to save the life of the pregnant person sounds the alarm to voters that even in states where abortion is not yet banned, there is no guarantee that that will remain the case. 

    At present, the 1864 ban is set to go into effect on June 27th at the earliest, and the repeal bill will not take effect until 90 days after the state’s legislative session closes, likely in June or July. This means that the ban will probably briefly take effect over the summer. For a look at what this kind of legislative chaos does to the healthcare system, take a few moments to read this piece describing the atmosphere at an Arizona abortion clinic after the Arizona Supreme Court’s ruling. 

• North Carolina:

  • Judge Catherine Eagles, a federal judge in North Carolina has ruled that aspects of North Carolina’s 12-week abortion ban are unlawful. Specifically, Judge Catherine Eagles ruled that the state’s abortion pill-related provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

  • The lawsuit in question was brought by Dr. Amy Bryant, a North Carolina ob-gyn. She argues that aspects of North Carolina’s ban are unconstitutional as they are preempted by contradictory federal regulations on medication abortion. Although Judge Eagles struck down several of the state’s restrictions, she allowed others that were not preempted by federal law to remain in place. Specifically, she found that the provisions of the law requiring an in-person consultation 72 hours prior to an abortion, use of an ultrasound, an in-person examination and blood testing, and the reporting of non-fatal adverse events to the state were not preempted. In September 2023, Judge Eagles issued a ruling in a separate case halting enforcement of several other provisions of the North Carolina law, including the requirement that surgical abortions after 12 weeks must take place in the hospital, and the requirement that physicians document the intrauterine location of early pregnancies prior to administering medication abortion. 

  • The issue of abortion availability in North Carolina is especially relevant as Florida’s 6-week abortion ban takes effect, forcing many to travel to North Carolina for care. It is also a timely ruling as the Supreme Court considers further restricting access to mifepristone nationwide in a case challenging the FDA’s authority to regulate the drug.

What else is happening in access? 

• The Kansas legislature has sent a fetal personhood bill to the Governor, where it is likely that she will issue a veto. The bill would allow pregnant people to begin collecting child support at conception, weaving the concept of fetal personhood into the state’s laws, but it would not grant medical expenses to persons who had an “elective” abortion. The bill, and others like it, raises alarm bells after Alabama’s recent disastrous ruling that frozen embryos were unborn children under the law, leading to the temporary cessation of IVF activities in the state. 

• Kansas lawmakers’ attempt to override the Governor’s veto of a gender-affirming care ban for minors has failed. 

• The Ninth Circuit Court of Appeals heard oral argument this week in Matsumoto v. Labrador, the case challenging the constitutionality of Idaho’s abortion trafficking ban. You can listen to those arguments here.  

• 17 Republican-led states have sued the Equal Employment Opportunity Commission (EEOC) in federal court, arguing that a new rule interferes with the states’ right to regulate abortion. The new rule interpreted the Pregnant Workers Fairness Act to require employers to give workers “reasonable accommodations” for pregnancy, childbirth, or abortion. Opponents of the rule argue that it exceeds the intended scope of the Act, but in reality, it would require nothing more than basic accommodations–it does not require states to compensate for abortions or even allow paid time off. 

• Mexico may elect its first female president, and advocates are considering what this could mean for the future of abortion in the country. Last year, the country’s Supreme Court issued a ruling finding that laws prohibiting abortion violate the constitution, and 12 of Mexico’s 32 states have decriminalized the procedure thus far.

• The Fourth Circuit Court of Appeals upheld two lower courts’ rulings and found that state-provided health care must cover gender-affirming surgeries. The Court reasoned that failing to do so is openly discriminatory as the same procedures, like mastectomies, that are prohibited for transgender people are permitted for other purposes, such as treating cancer.

• Louisiana lawmakers have shot down a bill that would have added exceptions for rape or incest to the state’s abortion ban. 

• South Dakota advocates have gathered enough signatures for a ballot initiative protecting abortion rights to move forward. 

• The South Carolina senate has voted to approve a gender-affirming care ban for minors. If passed, the bill would prohibit puberty blockers, hormone treatments, and gender-affirming surgeries for minors. It would also require school administrators to notify parents if a child is using a name that does not conform with their sex assigned at birth. 

• Researchers are continuing to investigate flawed findings and methodologies in anti-abortion studies, including those relied upon by judges determining abortion-related cases. The studies purport to show mental health and physical risks associated with abortion that are inconsistent with scientific consensus. 

• The city of Austin, Texas has passed a resolution seeking to protect trans people and stating that it is the city’s policy to not use its funds, resources, or personnel to investigate or penalize people for providing or receiving gender-affirming care. 

• The Tennessee legislature has sent its proposed abortion travel ban to the Governor for his signature. The bill would subject violators to mandatory prison time and increase fear while decreasing access in an already incredibly restrictive state. The ACLU and other advocacy groups are urging the governor to veto the bill. It has gone to the governor (SB 1971)

• Missouri advocates have submitted the necessary amount of signatures for their ballot initiative to move forward, despite a process fraught with opposition from both lawmakers and anti-abortion groups. 

• New York State has filed a lawsuit against anti-abortion group Heartbeat International and 11 crisis pregnancy centers, asking the court to block the groups’ claims regarding abortion pill reversal, a process that has not been adequately studied to determine safety and efficacy. 

• Self-managed abortions have been on the rise post-Dobbs, as many pregnant people are unable to access care in a clinical setting; although the history of pre-Roe self-managed abortions is an ugly one, the reality of modern self-management, largely through the use of abortion pills, is entirely different and remarkably safe. 

• Fears about the availability of IVF continue throughout the country, with families relying on it moving their embryos to access states at the recommendation of their clinics. 

• Florida has filed a lawsuit against the Biden administration challenging a new HHS rule prohibiting discrimination on the basis of gender identity under Section 1557 of the Affordable Care Act. 
  

REPRODUCTIVE HEALTH DIGEST (4/25/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we take an in-depth look at the Supreme Court’s oral arguments in Idaho v. United States, a consolidated case that asks whether Idaho can enforce its restrictive abortion ban despite federal law obligating hospitals to provide broader emergency care to every person. We also detail important reproductive health and bodily autonomy news from Arizona and elsewhere around the country. Please read to the end for all of the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• This Week’s Must Read:

• If you read nothing else this week, we highly recommend that you take a few moments with this Associated Press report detailing accounts of pregnant people being turned away from emergency rooms post-Dobbs. The stories were obtained using Freedom of Information Act (FOIA) requests into pregnancy-related EMTALA complaints, and they show an appalling pattern of pregnant people, particularly those in states that have enacted harsh abortion bans, being denied urgent emergency care with catastrophic results.

Legal Analysis:

• Arizona:

  • After three failed attempts in as many weeks, the Arizona House has finally voted to repeal a “zombie” civil war-era total abortion ban, advancing the effort to the Senate, where it stands a good, but not certain, chance of passage. Repealing the law would reinstate Arizona’s previously enforced 15-week abortion ban.

  • Earlier this month, the Arizona Supreme Court issued an opinion allowing the state to enforce a long-dormant  total abortion ban, passed in 1864 before Arizona was even a state. The court’s decision threw prominent Republican politicians into fraught political waters, particularly as voters are poised to vote on an abortion ballot measure in November. And, calls for the legislature to repeal the ban have been ongoing since the court’s ruling, including from anti-abortion Senate candidate Kari Lake (although she has now flip-flopped on the issue several times).The decision also drew widespread criticism from across the country, including an announcement by California Governor Gavin Newsom that he would introduce legislation easing the way for Arizonans to be able to practice reproductive medicine in California.

• Idaho and EMTALA: 

  • This Wednesday, the U.S. Supreme Court heard oral arguments in Idaho v. United States, the second abortion case that the Court heard this term. The consolidated case turns on the question of whether Idaho can enforce its total abortion ban over conflicting federal law. After the Dobbs decision upended abortion rights in the U.S., Idaho passed one of the most severe abortion bans in the country. As relevant to this case, the state’s law only permits abortion when it is necessary to prevent the death of the pregnant person. It does not include an exception to preserve the pregnant person’s health–a facet of the law that state legislators have defended using arguments grounded in fetal personhood. 

  • In response to Dobbs and subsequently enforced state-level abortion bans, the U.S. Department of Health and Human Services issued guidance reminding hospitals of their obligations to treat patients under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), regardless of state abortion bans. That guidance noted that state laws that are in conflict with EMTALA are preempted by the federal law to the extent of the conflict. EMTALA requires all hospitals that receive Medicare funding to stabilize any patient that presents with an emergency, regardless of their ability to pay or any other status. It was enacted in response to widespread “patient dumping,” the practice of offloading uninsured, low-income or undocumented patients to other institutions, resulting in devastating health outcomes. EMTALA’s exam and stabilization requirements are triggered not only in cases of possible death, but also to preserve the health of the patient and ensure their condition will not deteriorate as a result of hospital inaction, putting it in direct conflict with Idaho’s requirement that a provider not act unless it is necessary to prevent the patient’s death. In light of this conflict, the Biden administration sued Idaho, arguing  the state’s abortion ban could not stand with respect to abortions performed in emergencies pursuant to EMTALA. 

  • Similar to the mifepristone case that we have reported on previously in this Digest, the answer to this case should be a simple one: there is a state law and a federal law, and the two are in conflict with each other–under basic supremacy clause principles, and the express preemption language contained within EMTALA’s text, the federal law takes precedence. But, with a Supreme Court willing to upend settled law in order to restrict abortion, the odds of a majority of the justices embracing this clear truth appear low. 

  • During oral arguments, the justices divided along ideological and gender lines, with the male conservatives seeming willing to entertain the idea that EMTALA does not preempt Idaho’s abortion ban. Justice Alito, for example, specifically raised the question of whether EMTALA imposes an equal obligation of stabilization for both the pregnant patient and the fetus. This idea of fetal personhood is inconsistent with both EMTALA’s intent and purpose, as well as the actual practice of emergency medicine. As Solicitor General Elizabeth Prelogar explained in response to Justice Alito, the duty under EMTALA runs to the individual patient, meaning that a requirement to stabilize a pregnant patient’s fetus expands the care available to the pregnant individual but does not create an independent and separate duty to the fetus. Prelogar further explained how in practice, in the case of a previable fetus, you cannot stabilize the fetus without stabilizing the pregnant person, as the fetus's life is dependent upon the pregnant person’s. In the case of a viable fetus, the standard-of-care treatment option in such an emergency would be delivery, not abortion. 

  • The justices also went back and forth with Idaho’s attorney Joshua Turner on the question of whether the state’s ban is more restrictive than EMTALA’s requirements. By its very language, it is: the Idaho law restrains a clinician from taking action to resolve an emergency medical condition until and unless that clinician makes a good faith determination that such intervention is necessary to prevent death. EMTALA’s language imposes a broader obligation of care that encompasses impairment of a person’s health. Turner seemed unwilling to admit outright that Idaho’s law would tie doctors’ hands in certain dire circumstances, pivoting away from the question to say that such scenarios “implicate deeply theological and moral questions” and that Idaho had its own standard of care through which it has “drawn the line” on these issues. He continued by attempting to argue both that there is a direct conflict between the laws such that the federal government cannot force the state to comply with EMTALA, and that Idaho’s law is not as restrictive as the government represents, so doctors complying with Idaho law remain in compliance with EMTALA. 

  • While the male conservative Justices appeared open to Idaho’s arguments, the female Justices (including Justice Barrett at points), hammered Idaho’s counsel with questions designed to get at the heart of exactly what Idaho is telling its doctors they can and cannot do and how that will impact the availability of emergency healthcare. At several points, the Justices described real-world cases of women who have faced devastating health consequences as a result of being denied an abortion and pressed Turner on how Idaho’s law would handle such cases. Justice Kagan pointed out that “there’s a significant number [of such cases] where the woman’s life is not in peril, but she’s going to lose her reproductive organs” unless an abortion is permitted, and Justice Barrett pressed on the question of whether doctors could face prosecution for providing care in those circumstances. In his responses, Turner seemed not to understand that the uterus was an organ.

  • In spite of the deck seeming stacked against Idaho on legal, clinical and ethical grounds, numerous Justices raised issues that signaled their willingness to do whatever it takes to allow the state to prevail. Justices Thomas, Alito and Barrett all implied that state criminal law might supersede federal Spending Clause legislation. Justice Gorsuch questioned the U.S.’s right to injunctive relief and argued that such a right could lead to government usurping state powers. He raised this theory sua sponte, despite none of the lower courts raising a jurisdictional challenge to the government’s argument of object preemption, where a state law frustrates Congress’ purpose for a federal law. And finally, Justice Alito accused Solicitor General Prelogar of trying to “get out of” his analysis that EMTALA’s use of the term “unborn child” imposes upon the hospital a separate and zero-sum duty to the fetus.
    By the end of the two-hour arguments, the majority of the Justices appear poised to find a way to side with Idaho, with potentially devastating consequences for both abortion care in Idaho and emergency medicine in general. Since Dobbs, three rural hospitals in Idaho have closed their labor and delivery units, and one in four OB-GYNs in the state have either retired or moved out of the state. Recruitment for medical professionals in the state has also faced a crisis, with fewer and fewer providers willing to practice under the severely restrictive legal landscape. And physicians have spoken out about how their own practice would be impacted by a restrictive ruling, and how the Supreme Court misunderstands the practice of medicine.
    

More News in Access: 

• The Tennessee legislature has advanced a bill that would make “abortion trafficking” a crime in the state; it will now go to the governor’s desk for signature. If passed, the bill would criminalize assisting a minor in traveling to obtain an abortion without their parent or guardian’s permission, and mandate prison time for those found in violation. The bill would apply even to those minors who have been subjected to sexual assault by one of their parents–the very person who must consent to the abortion. One Democratic senator said that the bill “sounds like the Handmaid’s Tale.” 

• As Virginia Democrats try to protect contraception access in the state, Virginia Governor Glenn Youngkin has introduced a substitute amendment that would weaken the bill. In his suggested substitute, Youngkin changed it to a Section 1 Bill, which lacks the same legal heft, and removed a right of action for violations of the law. We will continue to report on this bill as it progresses through the legislature.

• A Colorado group has gathered enough signatures to place an abortion rights measure on the state’s ballot in November. Although abortion is currently legal in Colorado, enshrining that right into the constitution would give it permanence. Meanwhile, an anti-abortion measure has failed to garner enough signatures to move forward. 

• Kansas Governor Laura Kelly has vetoed a ban on gender-affirming care for minors; however, the Republican majority in the state legislature likely has enough votes to override her veto. 

• Kentucky democrats were unable to force through a vote to add exceptions for rape or incest to the State’s abortion ban before the end of the state’s legislative session.  The bill was never assigned to a committee, despite clear Senate rules requiring this. 

• Iowa has asked the state Supreme Court to allow it to enforce the state’s blocked 6-week abortion ban; the law has been placed on hold while litigation assessing its constitutionality plays out. The high court could either rule on the laws’ constitutionality or allow it to go back into effect and send it back for further consideration by the lower courts. 

• Florida advocates are ramping up their efforts to get voters to say “yes on 4,” the abortion initiative that will appear on the November ballot. Meanwhile, opponents of abortion rights have indicated that, if the initiative passes, they are ready to file a lawsuit challenging it using fetal personhood arguments that the state Supreme Court has indicated it is open to. Republicans say they’re ready to file a lawsuit. 

• The Supreme Court has allowed Idaho’s ban on gender-affirming care to take effect during the pendency of litigation. 

• Indiana Republicans are fighting to make individual reports detailing abortion care a matter of public record, infringing upon patient privacy in an extremely abortion-hostile state. 

• The White House has moved to put federal protections in place for patient’s reproductive health care information under HIPAA, prohibiting disclosure of such information for investigations into patients or providers in states where the relevant care is legal. 

• The U.S. Department of Health and Human Services (HHS) issued its final rule on Title IX protections last Friday, clarifying that its sex discrimination protections cover LGBTQ+ students, people in need of abortion, parents of all sexes and victims of harrassment and assault both on and off campus. The rule’s issuance was delayed while the agency processed and addressed the over 156,000 comments it received on its Notice of Proposed Rulemaking (NPRM) before the deadline of May 15, 2023. On Monday, Louisiana Education Superintendent Cade Brumley told the state’s schools to ignore the new rules, followed swiftly by his counterparts in Oklahoma, South Carolina and Florida. Extremist lawmakers have threatened to sue to keep the rule from going into effect on August 1.

• The ACLU has sued Montana over its new policy of requiring an amended birth certificate in order to have gender markers changed on a person’s driver’s license.  

• Ohio Republicans have introduced a new bill that would further restrict spending related to abortion. Although Ohio already severely limits any state funding of abortion services, this bill is unique in that it would not limit the prohibition to non-therapeutic abortions, and it is also not limited to state-funded entities.   

• Missouri anti-abortion activists are working to dissuade voters from approving an abortion rights ballot initiative, using false and misleading claims about the scope of the measure. 

• Maine’s Governor Janet Mills has signed into law protections for providers of both abortion and gender-affirming care, in an attempt to solidify the state’s status as a stronghold for bodily autonomy. 

• Seattle Children’s Hospital and Texas Attorney General have reached a settlement agreement in Paxton’s attempt to seize records relating to minors receiving gender-affirming care. The hospital, which attested that it does not provide in-person care to minors in Texas or virtually from Washington will not have to turn over any records and will rescind its business license in Texas. 

• A new report finds that young people are opting for permanent contraception methods such as tubal ligation and vasectomies at higher rates post-Dobbs, likely a reflection of anxiety about the lack of options in the event of an unplanned or medically complicated pregnancy. 

• Take a look here for a roundup of where abortion is on the ballot this year. 

• A review by Axios breaks down who has to drive the farthest to obtain an abortion by demographic groups, showing disproportionate access for people of color and those with a lower income.

REPRODUCTIVE HEALTH DIGEST (4/11/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover the recent rulings from the Arizona and Florida state supreme courts, as well as litigation developments out of Indiana and Tennessee. We also take a look at reproductive rights politics on the national stage and legislative movement at the state level. Reproductive health law has changed quickly in the past two weeks, even by the current post-Dobbs standard. Please read on for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s ‘Must Read’ comes from Ms. Magazine and takes a look at how American policy shapes and influences reproductive health equity on a global scale. Policies like the Mexico City Policy and the Helms Amendment that narrow access to reproductive health information and options have a negative impact on everything from abortion care to pregnancy outcomes and access to menstrual products in developing nations.

Legal Changes at the State Level: 

• Brief Overview: 

• Florida: Last week, the Florida Supreme Court issued two decisions relating to abortion. The first found that the state’s current 15-week abortion ban does not violate the Florida constitution’s privacy protections; this will allow Governor DeSantis’s previously passed 6-week ban to take effect 30 days from the ruling. The second decision found that an ongoing ballot initiative’s language was sufficiently clear to go on the November ballot. 

• National Election: This week, Republican presidential nominee Donald Trump announced his view that abortion regulation should be left to the states, declining to back a national abortion ban. However, the presidential hopeful would not need to explicitly pass a national ban in order to effectively end access. Instead, an anti-choice administration could instruct the DOJ and FDA to enforce policies that restrict access to medication abortion and make it virtually impossible to ship any materials needed to perform an abortion, potentially also impacting contraception. Although Trump has faced backlash from far-right anti-abortion groups and politicians for his failure to back a national ban, he has repeatedly touted the overturn of Roe as a key success of his administration, as recently as April 10th. 

• Arizona: The Arizona Supreme Court issued a ruling on Tuesday finding that an 1864 total abortion ban can be enforced. The Court stayed implementation of its decision for 14 days, and it is unclear what the ultimate impact will be as the state’s Democratic Attorney General immediately indicated that she will not prosecute cases brought under this law and the state’s Governor called for a repeal of the ban. At present, abortion is legal in the state until after 15 weeks gestational age. 

• Indiana: An Indiana Court of Appeals has upheld a lower court judgment blocking the state’s abortion ban in cases where it conflicts with a person’s sincerely held religious beliefs. Faith-based pro-choice arguments are a unique feature of post-Roe litigation, and the Indiana case may serve as a test case for other potential plaintiffs. The decision is likely to be appealed up to the State’s Supreme Court.
  

Deeper Legal Analysis 

• Florida: 

• Last week, the Florida Supreme Court issued two highly anticipated decisions relating to abortion access in the state. The first came in a case challenging the constitutionality of the state’s 15-week abortion ban, and the second addressed whether a proposed ballot initiative is sufficiently clear to go before voters in November. 

• At present, abortion is permitted in Florida until around 15 weeks gestational age, with exceptions for the life or health of the pregnant person or in certain cases of lethal fetal anomaly. However, last year Governor DeSantis signed into law a 6-week ban, with narrow exceptions for the life or health of the pregnant person or in cases of rape or incest until 15 weeks. This law was blocked while litigation over the constitutionality of the 15-week ban played out. Now that the court has ruled that the state constitution does not protect the right to abortion, the 6-week ban will take effect  30 days from that ruling. 
  

  The implementation of DeSantis’s 6-week ban further decimates reproductive health access in the South. Nearly all of Florida’s closest neighbors have enacted abortion bans far stricter than the currently enforced 15-week ban, and last year saw an influx of patients to the state. Now, patients closest access points will be Virginia or North Carolina, further burdening an already overburdened healthcare system. Since the Dobbs decision, the consequences of harsh abortion bans have been made evident with story after story of pregnant people failing to receive medically necessary abortions. The same will happen in Florida. Pregnant people in crisis will be forced to risk their lives and take extraordinary measures to travel long distances in order to receive medically standard care. This is likely to galvanize voters on the issue of abortion in November. 
  

  The second decision from the state’s high court relates to an ongoing ballot initiative effort that, if successful, would protect abortion in the state constitution until viability. The Court found that the language contained in the initiative was sufficiently clear to go before voters in November. The citizen-led ballot initiative has already collected enough signatures to qualify for the ballot, and the court’s decision clears another hurdle for it to move forward. 
  

  Despite finding that the initiative could move forward, the court’s majority, concurring and dissenting opinions gave alarming indications that the court is open to the idea of fetal personhood–or granting fetuses and embryos the same legal rights as any born person.  The dissenting justices were more explicit, making clear that they would support recognizing a fetus as a natural person under the state constitution. This is a concerning signal that , even if the amendment passes in November, the justices may be willing to entertain an argument that it conflicts with the state constitution’s guarantee of the right to life.  Justice Grosshans directly  alluded to this, writing that “the voter may think this amendment results in settling this issue once and for all[;] it does not.”  
  

  While the court’s decision to allow the amendment to move forward is positive, it is also the bare minimum and the obviously correct conclusion. The court’s review in this case was extraordinarily narrow–the question asked was not a substantive one but was merely whether the language of the amendment put voters on fair notice of what they are voting for. The language of the amendment is clear and unambiguous. Whether the justices would allow it to move forward consistent with the state’s own democratic process should have never been in question.

  Oklahoma: 

  • The Oklahoma legislature  has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
    
    One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception.  When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion. 

    Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel. 

    As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
    

• Arizona: 

  • This week, the Arizona Supreme Court dealt another blow to abortion rights by handing down a decision finding that a civil war-era 1864 abortion ban is enforceable in the state. 

  At present, abortion is illegal in Arizona after 15 weeks gestational age, with exceptions for the life or health of the pregnant person. However, the highest court in the state has now functionally overridden the legislature’s clear intent in passing that law, ruling instead that, because of the overturn of Roe, a total abortion ban can be enforced. This ban, by its express language, does not include an exception for the health of the pregnant person–it only includes an exception to prevent their death.  Providers found to be in violation of the law would face 2-5 years of prison time. As the court put it, “in light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.” 

  In purporting to parse state legislative intent, the Arizona Supreme Court upheld a law that was passed almost half a century before Arizona even became a state, and well before women had the right to vote (let alone participate in the legislative process). The idea that this reflects the present-day “legislature’s judgment” or the “will of [Arizona] citizens” is absurd on its face. 

  In its opinion, the court stayed the decision for 14 calendar days from the ruling to allow it to go back to the trial court for consideration of further questions. After that 14-day period, it will not go into effect for an additional  45 days, and once the decision takes effect,  the question of enforcement remains unclear. Arizona’s democratic Governor Katie Hobbs immediately condemned the ruling and vowed to continue fighting for the rights of pregnant people in the state. Last year, Governor Hobbs issued an executive order giving the state’s attorney general sole discretion to prosecute abortion related cases. And Attorney General Kris Mayes, also a democrat, issued a statement calling the decision “unconscionable” and an “affront to freedom” and vowing that no pregnant person would face prosecution under this law as long as she remains the attorney general. The responses by Arizona’s leadership are a hopeful sign that the law will not be enforced for the time being; however, that can change if and when state administrations change. 

  The court's decision has stirred debate over whether the legislature should move to repeal the long-dormant ban. However, Republican legislators stymied attempts to do so the day after the decision, leading to a heated exchange with their democratic counterparts. It remains possible that the legislature will take action to repeal it at some point in the future. 
  In addition to a legislative solution, Arizonans will have the opportunity to directly vote on whether to enshrine abortion rights into the state constitution this November. Post-Dobbs, abortion has been a driving issue in elections across the country, and it is all but certain that this most recent decision will galvanize voters to support the amendment. In the meantime, clinics and providers will be forced to yet again decide whether they are willing to risk their career and their freedom in order to practice medicine and care for their patients.
  

• Indiana:

  • In Indiana, where a total abortion ban is currently in place, a Court of Appeals has upheld a lower court judgment blocking the ban in cases where it conflicts with a person’s sincerely held religious beliefs. The plaintiffs in this case are made up of Hoosier Jews for Choice, three individuals and one couple. They collectively argue that the state’s abortion ban violates the state Religious Freedom Restoration Act (RFRA) because it infringes on their ability to practice their sincerely held religious beliefs. Specifically, the plaintiffs argue that the belief that life begins at conception is not a universally held religious view and that their particular faiths mandate abortion under certain circumstances, such as if the pregnant person’s life or health is endangered. 

  The Court of Appeals sided with the plaintiffs on their argument that the right to obtain an abortion when religiously mandated is the kind of religious freedom protected under the state’s RFRA. It also decided important questions of standing in the plaintiffs favor. In recent abortion litigation, a great deal of judicial energy has been spent on the question of whether and when plaintiffs have the right to bring a lawsuit. In this case, the state argued that the plaintiffs do not have a right to sue because they are not currently pregnant, and therefore are not facing an imminent threat to their religious liberty. The court disagreed, finding instead that the plaintiffs have shown that they have altered their behavior out of fear of becoming pregnant and being forced to contend with the state’s abortion ban. The court also agreed to allow the case to proceed as a class action, broadening its potential impact. Although this decision is only precedential in Indiana, it sends an important message to potential claimants in other states who may face similar religious burdens based on their state’s abortion and health restrictions. 

  This case also has potentially important federal implications, as Indiana’s RFRA is all but identical to the federal RFRA. Although there can be no certainty of litigation outcomes, the Indiana court’s opinion arguably creates a framework by which other litigants could challenge their state’s abortion ban under federal law. 
  Faith-based pro-choice arguments are a unique post-Roe litigation strategy–and one that turns traditional abortion litigation on its head. The pro-life movement has typically claimed religion as its own, portraying abortion as antithetical to faith. However, this lawsuit challenges that notion, pointing to the myriad faith traditions, including Islam and Judaism, that hold moderate or permissive views on abortion and arguing that state law should not be governed by one narrow and highly subjective view of when life begins. We will continue to report on this case as it develops; the appeals courts’ decision is all but certain to be appealed up to the State’s supreme court.

What else is happening in access? 

• Last week, Tennessee heard oral arguments in a case challenging exceptions to the State’s abortion bans. This case was brought directly by seven pregnant people and two doctors who were harmed by the State’s restrictive laws. This case closely mirrors a similar patient-driven case that is ongoing in Texas. The Center for Reproductive Rights, who represents the plaintiffs in the Tennessee case, argues that the existing exception for medical necessity is too vague to be workable and forces providers to take on potential liability in order to treat their patients.

• The Alabama legislature has proposed an abortion trafficking bill that would make it a crime  to “aid or abet” a minor in leaving the state to obtain an abortion without parental consent. Alabama’s bill is the latest attempt to criminalize interstate travel for abortion care, joining the ranks of proposed legislation in Oklahoma, Tennessee and Mississippi. Idaho has already criminalized such “abortion trafficking.”

• Iowa Attorney General Brenna Bird faced harsh criticism for her decision to stop state funding for emergency contraception for victims of sexual assault; at the time, she cited a state audit of state’s victim services programs. However, Iowa auditor Rob Sand has now stated that there is no formal audit going on regarding payment for emergency contraception. Removing access to emergency contraception is one form that attacks on contraception can take. 

• Following the passage of Issue 1, a constitutional amendment enshrining the right to abortion in the Ohio constitution, advocates have brought a lawsuit challenging remaining restrictions, including a 24-hour waiting period. The Plaintiffs argue that the requirements are now rendered unconstitutional. 

• A Texas woman is suing the Starr County DA after being wrongfully charged with murder for self-managing her abortion. Texas law does not permit murder charges to be brought against pregnant people who undergo an abortion, and the DA is accused of misleading jurors into formally charging the woman

• New polling continues to show widespread support for access to medication abortion ahead of a Supreme Court decision that may limit that access. 

• Colorado is poised to enact a law that would protect lgbtq+ youth in foster care, standing in sharp contrast with other states who expressly allow children to be placed with unsupportive families. 

• Amidst the ongoing fight against fetal personhood laws, one potential impact has received little attention–end of life care for pregnant people. Although every U.S. state allows advance directives wherein a person can specify what kind of life support they would like to receive in the event of a catastrophic injury, over half of the states make exceptions in cases where the person is pregnant. Fetal personhood laws would add an additional complicating layer to this legal equation, potentially requiring a pregnant person to remain on life support against their own wishes and the wishes of their family in order to sustain a pregnancy. 

• President Biden has teamed up with Amanda Zurawski, a plaintiff in the case challenging the exceptions to Texas’s abortion ban, to launch a campaign ad highlighting his support for restoring some measure of reproductive freedom. 

• An Alabama woman was forced to travel out of state to obtain an abortion despite her fetus having multiple anomalies, including a heart defect and a massive tumor; although the first committee approved her abortion request easily, the second denied it based on a finding that each of the anomalies on their own was survivable, and it therefore did not meet the criteria for an abortion in the state.

• A federal judge has dismissed a suit challenging a California shield law protecting trans people who come to the state for care; the judge found that the plaintiff failed to establish standing, as they could not show any way in which the law had injured them. 
  

REPRODUCTIVE HEALTH DIGEST (3/28/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover oral arguments in Alliance for Hippocratic Medicine v. FDA, the case challenging access to medication abortion, as well as critical legislative and administrative movements in the states. As always, we highly recommend that you read to the bottom to get the full picture of the current reproductive health landscape.

Before we dive into this week’s Digest, we want to thank everyone who joined us for this week’s same-day breakdown of the mifepristone oral arguments and exclusively invite you to join us again next month for a debrief of Idaho v. United States. In this case, abortion will once again be in front of the Supreme Court, as it considers whether federal obligations to treat emergency patients under the Emergency Medical Treatment and Labor Act (EMTALA) preempt state abortion bans. Arguments are scheduled for Wednesday, April 24th. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• This Week’s Must Read:

• ABC published this piece last week, highlighting the story of a seventh grader in Mississippi who was forced to give birth after becoming pregnant as the result of an assault. She was unable to obtain an abortion, despite Mississippi’s purported exception for victims of rape or incest. Although the story was reported on previously, it is worth raising again as it both highlights the abject cruelty of abortion bans and illustrates the very real consequences of unworkable “exceptions” and how those consequences fall the hardest on already marginalized communities. A GoFundMe has been set up for the family and is available here. 

Legal Analysis:

• Mifepristone Oral Argument: 

• The Supreme Court heard oral arguments this week in Alliance for Hippocratic Medicine v. FDA, the case that will determine the future of medication abortion in the U.S. 

• This case began in 2022 when the Alliance for Hippocratic Medicine (“AHM”) and other Plaintiffs represented by the Alliance Defending Freedom filed suit in the Northern District of Texas, Amarillo Division. AHM was incorporated in 2022 in Amarillo, just months before bringing the present litigation. Notably, none of AHM’s member organizations reside in Amarillo, or even in Texas. However, filing suit in the Amarillo Division guaranteed that the Plaintiffs would land in front of Judge Matthew Kacsmaryk, a Trump appointee and far-right conservative with a history of extreme anti-abortion and anti-LGBTQIA+ positions. Given the myriad problems with the Plaintiffs’ claims and their clear lack of standing to bring the lawsuit, the case’s survival relied upon landing in front of a highly sympathetic judge. 

• Judge Kacsmaryk effectively rubber-stamped the Plaintiffs’ claims, and through the litigation process, the case has made its way up from the District Court to the Fifth Circuit Court of Appeals, and finally to the U.S. Supreme Court. By the time it made it to SCOTUS, the Plaintiffs’ challenge to the initial 2000 FDA approval of mifepristone had been struck for falling outside of the statute of limitations, and the scope of the case narrowed to changes the FDA made to the regulations for mifepristone’s use in 2016 and 2021. These changes, including doing away with an in-person visit requirement, made the drug more accessible. Recent data shows that over 60% of abortions now occur through the use of medication. A ruling restricting mifepristone’s availability would devastate access, particularly for individuals living in maternity care deserts or states with abortion bans in place. 

• During oral arguments on Tuesday, the Justices focused heavily on the question of standing, or whether the Plaintiffs can show that the FDA’s actions have caused them injury. At the heart of this inquiry is the fact that the Plaintiffs in this case neither take nor prescribe mifepristone, and federal conscience protections allow them to object to providing any medical care that violates their personal beliefs. In the absence of direct harm, the Plaintiffs’ primary theory of standing relies on a heavily speculative chain of hypothetical events. Specifically, they would have to show that a pregnant person took mifepristone, that person then suffered a complication (which is exceedingly rare), that they then went to the emergency room and happened to be assigned to one of these particular doctors, that the doctor asserted conscience objections, and that those objections were then ignored, forcing the doctor to incur a moral injury. Unsurprisingly, throughout the course of litigation, the Plaintiffs have failed to produce a single instance where this series of events has materialized, a fact that their attorney all but conceded during arguments. 

• In addition to showing injury, the Plaintiffs must also show that their alleged harm is traceable to the challenged conduct–here, the FDA’s treatment of mifepristone in 2016 and 2021. They cannot do so. The FDA’s regulations do not compel these plaintiffs to do or refrain from doing anything; they merely state the safe conditions of use for the drug. If, for example, the Plaintiffs were able to point to a time wherein they had been forced to provide treatment over asserted conscience objections, that harm would flow to their hospital or institution–not to the FDA itself. 

• During arguments, the Justices, including several of the conservative Justices, seemed broadly skeptical of the plaintiffs’ standing arguments, honing in on the question of whether a plaintiff had ever actually been forced to provide care despite their conscience objections. Justice Gorsuch also raised concerns about granting broad universal relief to remedy speculative harm allegedly suffered by a tiny handful of doctors. Although the Justices primarily focused on standing, the merits of the case were raised on a few occasions. Justice Jackson, for example, inquired about the propriety of non-expert Judges weighing in on complex questions of medical safety, citing Judge Kacsmaryk’s heavy reliance on several now-retracted studies.  

• Justices Alito and Thomas seemed the most willing to accept the Plaintiffs’ theory of the case. Both Justices questioned Solicitor General Elizabeth Prelogar vigorously about how the FDA can be held accountable if these Plaintiffs do not have standing and raised the specter of the Comstock Act. Comstock, a 151-year-old law passed under Ulysses S. Grant’s administration, bans the mailing of goods used for abortions. However, the law has not been enforced in many decades and has long been considered functionally dead. And, the Department of Justice, the Agency charged with enforcing Comstock, has issued a memorandum explaining that it does not apply to the mailing of materials related to lawful abortions. Despite this, the Plaintiffs insist that the Comstock Act applies, and experts warn that if Trump is reelected in 2024, he will likely resurrect the law and functionally ban abortion without the need to pass a national abortion ban through Congress. 

• We do not know exactly when the Justices will issue their ruling; however, it is likely to come in early summer, before the Court’s term ends in June. Based on what we heard in the arguments, it seems plausible that the Court will reject the case on standing grounds. And, the Justices may be hesitant to further restrict abortion access in an election year, given the clear galvanizing effect that reproductive rights have on progressive voters. Regardless of how much logic dictates the dismissal of the case, however, it is critical to remember that this is the exact same Court that overturned Roe.  And, the mere fact that the Plaintiffs’ case made it this far with partial or wholesale approval from the lower courts is reason enough for skepticism. 

• If the Court does choose to reject the case on standing grounds, it is likely not the end of the legal fight over mifepristone. Judge Kacsmaryk has already granted several conservative states permission to intervene at the District Court level, which could allow them to revive the case on their own theory of standing. And as mentioned above, a change in presidential administration could have drastic consequences for the availability of the drug. 
  This case marked the first time since Dobbs that abortion has made it to the Supreme Court, but it won’t be the last. Next month, the Justices will hear arguments in Idaho v. U.S., a case challenging whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts conflicting state abortion bans.

More News in Access: 

• Oklahoma’s abortion trafficking bill has passed out of the House and into the Senate. With the Republican majority in the state Senate, the bill stands a very good chance of passage, which would make Oklahoma the second state to criminalize “abortion trafficking.” 

• Amidst ongoing litigation over the State’s abortion bans, the Texas Medical Board has proposed guidance for providers; however, it fails to meaningfully contend with the ambiguity created by the laws. The proposed rules state that a doctor can provide an abortion if they deem it medically necessary using reasonable medical judgment. This language gives providers little to no additional clarity about when they are able to intervene to help their patients. The proposed rules also require providers to document in detail their reasoning for determining that a medical emergency exists. In a state with an Attorney General eager to prosecute for abortion-related offenses and a bounty hunter law in place, documentation requirements are cause for concern. 

• Advocates in Florida have been fighting to get abortion on the ballot for the State’s November election. Last month, the Court heard oral arguments on whether the language of the referendum is sufficiently clear. The Court has not yet issued its ruling, and it must do so prior to April 1st if the initiative is going to appear on the November ballot. 

• There are two open seats on the Montana Supreme Court, and there is every reason to believe that these elections will center heavy discussion about abortion rights. Currently, abortion is legal in the state until ‘viability;’ however, Republican Governor Greg Gianforte has aggressively tried to curtail access since the overturn of Roe. 

• South Dakota Governor Kristi Noem has signed a bill allowing individuals to withdraw their signature from a ballot initiative after the fact; opponents of this bill argue that it is a transparent attempt to interfere with the abortion rights ballot initiative that is currently making its way to the State’s voters. 

• Missouri’s Attorney General is defending his lawsuit against Planned Parenthood, wherein he alleges that Planned Parenthood has assisted minors out of state to obtain abortions without their parents’ knowledge or consent. In discussing the lawsuit, A.G. Bailey described Planned Parenthood as “a lawless cult of death with a documented pattern of willful refusal to comply with state statutes.” 

• On the heels of the disastrous Alabama Supreme Court decision determining that frozen embryos were unborn children for the purpose of state law, North Carolinians are urging their state legislature to step in and proactively protect IVF. 

• Planned Parenthood affiliates are training abortion doulas to provide support for patients in an increasingly stigmatized landscape for reproductive rights.

• Some experts say that the fetal personhood movement is increasingly creating a rift between anti-abortion activists and the Republican party, two historically aligned groups. 

• Wyoming has banned gender-affirming care for minors, making it the 23rd state to ban or severely curtail access to treatment. 

• New data shows that medication abortion now accounts for about 63% of all abortions nationwide. The availability of telehealth for abortion care has significantly contributed to this rise. 

• An alarming new report out of Louisiana shows how standard pregnancy care, including treatment for miscarriage and ectopic pregnancy, has suffered as a result of the State’s abortion ban. 

REPRODUCTIVE HEALTH DIGEST (3/14/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest covers newly proposed and passed legislation in several states, the future of mifepristone in pharmacies, how abortion politics are shaping the presidential race, and many more pieces of critical reproductive health news. We are also introducing a ‘must-read’ piece into each Digest, uplifting a story that provides essential context or insight on the current fight for reproductive rights. Please read on for more information.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Legal Changes at the State Level: 

This Week’s Must Read: This week, we are highlighting this piece from Time. The story of Kate Cox, the Dallas woman who sued Texas for the right to an abortion in the face of a devastating fetal diagnosis and was denied, has struck a nerve with Americans across the political spectrum. Time released this piece explaining how exceptions to abortion bans have never been sufficient to protect the lives and health of pregnant people and paralleling Ms. Cox’s story with Sherri Chessen’s nearly identical story from 1962. 

• Brief Overview: 

• Alabama: In the wake of the disastrous state Supreme Court ruling finding that frozen embryos are unborn children under the law, Alabama lawmakers have rushed through a bill purporting to protect IVF access in the state. With alarm bells raised about the impact of fetal personhood on access to fertility treatment and contraception, other states are scrambling to modulate their responses and handle their own proposed fetal personhood laws.  

• State of the Union: Abortion policy was front and center at the State of the Union address last week, with several democrats inviting women directly impacted by restrictive abortion bans as their guests and President Biden highlighting his administration’s desire to restore the protections of Roe v. Wade. Although alleviating the crisis created by Dobbs is absolutely critical, abortion rights advocates are urging the President and his administration to do more than merely restore Roe. Roe was never enough to protect access to reproductive care for everyone, and this moment provides an opportunity to envision a safer and more equitable future. After a number of state-level victories for abortion in 2023, the issue continues to poll as a high priority for many voters in the upcoming presidential election. Although Donald Trump has wavered on whether or not he would support a national abortion ban, his major supporters are certainly urging him to do so, and he continues to tout the overturn of Roe v. Wade as one of the major accomplishments of his administration.

• Mifepristone:  Mifepristone, one of two drugs typically used in a medication abortion, will now be sold in certain CVS and Walgreens pharmacies, in states where it is legal to do so. This marks a massive regulatory change in the distribution of the medication.  

• Kansas: The Kansas legislature has introduced a series of anti-abortion bills aimed at further tightening access to the procedure in the state; these bills are emblematic of the types of legislation being proposed in state sessions across the country. 

Deeper Legal Analysis 

• Alabama and Fetal Personhood: 

• In our last Digest, we reported on the Alabama Supreme Court’s ruling that frozen embryos were minor children for the purpose of the state’s wrongful death of a minor law. This unprecedented ruling caused IVF providers in the state to immediately cease services and sent shockwaves of anger and concern throughout the country. The Court’s decision was indeed shocking, particularly in light of its heavy and open reliance on Christian ideology and subjective religious interpretation. But, reproductive rights advocates have long warned that fertility treatments and contraception are the next targets of the anti-abortion movement. Experts who predicted the overturn of Roe were dismissed as cynical and alarmist, until it happened. Post-Roe, those same experts have been criticized for their warnings that other aspects of reproductive health care are already at risk. Once again, they have been proven unfortunately right, serving as a reminder that threats to bodily autonomy must be taken seriously, and we cannot rely on the protections of the past.
  
  Last week, Alabama responded to the Court’s ruling by rushing through a bill purporting to temporarily protect IVF. The bill’s sponsors openly acknowledge that it is merely a stopgap measure aimed at reopening IVF clinics in the wake of the decision. The bill grants IVF providers immunity from civil and criminal liability, theoretically allowing them to resume services without fear of penalty. However, it entirely sidesteps the question of whether embryos are considered minor children under Alabama law, a question that has far-reaching consequences for nearly every aspect of reproductive medicine. And, the law’s creation of near-total immunity for providers creates new problems of its own. No aspect of the medical profession is granted blanket immunity for actions related to medical practice. This law seems to make an exception to that rule for IVF providers, depriving families of meaningful legal recourse for losses related to their frozen embryos. IVF is an extremely financially and emotionally taxing process, the question of whether families should have legal options when losses occur is not controversial. However, remedying those losses by defining frozen embryos in such a way that eliminates access to IVF in the state altogether is not a reasonable solution. 
  
  In response to the Alabama ruling and subsequent legislation, other states have scrambled to stake out their own positions and decide how to handle pending and already-passed fetal personhood laws. Currently, about one third of U.S. states. have fetal personhood laws on the books. You may recall that in our previous Digest, we reported on a proposed anti-abortion law in Oklahoma that would have consequences for contraception, fertility treatments, and reproductive health privacy. The sponsor of that bill has now added amendments clarifying that IVF would not be implicated, eliminating the section of the bill that would have created an abortion database and allowing for the use of emergency contraceptives and IUDs. However, the proposed bill still uses fetal personhood language like “unborn child” and “unborn human” in place of the actual scientific and medical terms for various gestational stages, raising concerns about its potential consequences for reproductive medicine. 
  
  In Iowa, another fetal personhood bill is moving forward. This bill would increase the criminal penalties and jail time for terminating a person's pregnancy without their consent and redefine the fetus as an unborn child. The law has raised concerns over its definition of an unborn person as beginning at fertilization. Defining pregnancy as beginning with fertilization, rather than implantation, has huge implications for common forms of birth control and fertility treatments and is a key strategy in the fetal personhood movement.

• Mifepristone: 

  • Mifepristone, one of two drugs typically used in a medication abortion regimen, will soon be available in major pharmacies for the first time in U.S. history. Medication abortion, which is currently approved for up to 10 weeks into pregnancy, is the most commonly used abortion method in the U.S. The safety record of the drug, including when prescribed through telehealth, is nearly unimpeachable. As the American College of Obstetricians and Gynecologists reports, complications occur in less than 1% of patients, with serious complications occurring in less than .3% and the risk of death being effectively nonexistent. 
    
    Under previous FDA regulations, the drug had to be both prescribed and dispensed by the physician. Under the new policy, certified providers will prescribe the drug, and patients will then be able to obtain it from their local pharmacy in the same way as they would any other prescribed drug. Ideally, this will increase the number of prescribers of the medication, expanding access for patients. Of course, mifepristone will only be stocked in pharmacies in states where it is legal to do so, and initially, both CVS and Walgreens will be dispensing from only a limited number of pharmacies even within access states. However, the move to certify pharmacies to dispense the medication will hopefully allow pregnant people who are unable to safely receive medication abortion to their home address or who may be experiencing unstable housing conditions to have an additional option for care. 
    
    Of course, if you read this Digest regularly you already know that mifepristone will be going before the Supreme Court later this month. Depending on how the Court rules, access to the drug could be severely limited, and the regulatory framework of FDA decision-making could be upended. However, this latest move by major pharmacies to dispense mifepristone sends a powerful signal that they believe the medication should be treated in the same way as any other FDA-approved drug.
    
    

• Kansas:

  • Kansas legislators have proposed a series of severe anti-abortion bills during the State’s 2024 legislative session, and advocates are pushing back. Although Kansas is far from alone in its proposals, the state provides a good case study on the types of bills being advanced in anti-abortion legislative circles across the country. 
    
    Kansas’ proposed legislation ranges in subject matter from fetal personhood laws to funding for crisis pregnancy centers, but one of the bills that has received the most criticism is H.B. 2749. If implemented, H.B. 2749 would require abortion providers to ask their patients invasive questions about their reasons for seeking an abortion and report their answers to the state. The questions, including ones about whether the abortion is being sought because of the pregnant person’s career or because they think they already have enough children, are entirely medically unnecessary and represent an inappropriate intrusion into personal decision-making. 
    
    Another pair of bills, H.B. 2789 and H.B. 2809 would divert state funds to promoting childbirth in the face of unplanned pregnancies and require the state treasurer to coordinate with pregnancy centers to provide supplies and information about adoption. And Senate Bill 498 would explicitly require the state to support crisis pregnancy centers and maternity centers by providing a 70% tax credit beginning this year. 
    
    Kansas lawmakers are also proposing a series of fetal personhood bills, including H.B. 2653 and S.B. 435, which would allow for child support beginning at conception. Although proponents of these laws insist that they are intended to support pregnant people, in reality, they are a flagrant backdoor attempt to attach legal rights to an unborn fetus and incorporate those rights into existing systems of law, like the family law system. 
    
    Abortion went before Kansas voters in 2022, in the first Post-Dobbs ballot initiative. And, voters resoundingly rejected a proposed constitutional amendment that would have allowed lawmakers to ban abortion in the state without exception. Despite this decisive statement from Kansans, lawmakers continue to push to further restrict access in the state.

What else is happening in access? 

• This past week, the Nebraska Supreme Court heard oral arguments in the case challenging the State’s hybrid gender-affirming care and abortion ban. Attorneys challenging the law argue that it violates the state constitution’s rule that all legislation must only cover a single subject. 

• The first over-the-counter birth control pill will soon be available in stores across the U.S. 

• Missouri Republicans have introduced an extreme law that would prohibit state public and private medical schools from providing abortion training or partnering with out-of-state institutions to provide such training. If passed, this bill will severely diminish providers' preparedness to act in an emergency situation where an abortion is necessary and will inevitably worsen the maternal mortality crisis in the state. Bills like this one further Republican-led efforts to expand their states’ abortion bans beyond their own borders. Providers trained in Missouri may go on to practice medicine in other states during their career, and without full spectrum medical training, they will be unprepared to do so and the country will lose out on critical maternal health experts. 

• Wyoming is set to implement a gender-affirming care ban for minors, making it the twenty-third state to do so. 

• The Guardian has published a stirring piece on the lives lost to the Dominican Republic's total abortion ban; it is a jarring reminder of the medical necessity of safe and accessible abortion care. 

• A Judge has temporarily blocked Texas Attorney General Ken Paxton’s demand that PFLAG, an LGBTQ+ organization, turn over records relating to minors who have received gender-affirming care. 

• As we wrote about in the last Digest, Alabama’s IVF ruling is not only devastating for fertility treatment, but it also gives dangerous credibility to a fetal personhood movement that would see common forms of birth control and emergency contraception banned.  

• Tennessee woman Mayron Hollis allowed ProPublica to follow her family for a year after she was denied an abortion despite a severely dangerous pregnancy; the piece highlights the struggles that followed. 

• France has become the first country to officially enshrine abortion rights into the country’s Constitution. 

• An investigation has found that a major U.S. pharma group that filed briefs opposing further restrictions on mifepristone also gave $125,000 to the Republican Attorneys General Association, a group made up of Attorneys General who have largely formally opposed access to the drug. 

• Opponents of Arizona’s proposed abortion ballot initiative are engaged in ‘decline to sign’ efforts aimed at directly deterring citizens from supporting the measure; these person-to-person campaigns is important for anti-abortion groups in the state, because Arizona lacks the political power–like a Republican Attorney General–that allowed institutionalized state-level push back to abortion ballot initiatives in other states like Ohio. 

• In Montana, a judge has ruled three laws unconstitutional, key among them is a would-be ban on abortion after 20 weeks gestational age. The lawsuit was originally brought in 2021, and the challenged laws were not in effect at the time of the ruling. 

• The South Dakota bill aimed at allowing petition signers to later remove their signatures from a ballot initiative now goes to the Governor’s desk for her signature. This bill has been criticized as the latest Republican attempt to disrupt direct democratic efforts to protect abortion rights. 

• The U.S. Judicial Conference has adopted a new policy aimed at eliminating the practice of “judge shopping”, wherein litigants will deliberately bring their case before judges favorable to their cause. The most prominent recent example of this is the case challenging mifepristone, wherein the plaintiffs filed suit in the Amarillo Division of the Northern District of Texas, where it was guaranteed to land on the desk of extreme anti-abortion judge Matthew Kacsmaryk. 

• New polling out of Missouri shows that voters support an abortion rights ballot initiative by a narrow margin.
  

REPRODUCTIVE HEALTH DIGEST (2/29/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we discuss the Alabama Supreme Court’s ruling limiting access to IVF, proposed legislation that would restrict access to contraception and abortion, efforts to undermine direct democracy in states attempting to pass abortion-protective ballot initiatives, and many other critical news stories. As always, we cannot include everything in our detailed legal analysis, so be sure to read our ‘More News in Access’ section to stay up to date on all of the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Legal Changes at the State Level: 

• Brief Overview: 

• Alabama: In an unprecedented moment for the fetal personhood movement, the Alabama Supreme Court has issued a ruling finding that cryogenically frozen embryos are “children” under state law, throwing the legality of fertility treatments like in vitro fertilization (IVF) into question and causing Alabama providers to cease offering IVF services. 

• Oklahoma: The Oklahoma legislature has proposed a series of bills that, taken together, would criminalize “abortion trafficking”, make it more difficult to access emergency contraception and other kinds of birth control like IUDs, and further limit access to medication abortion. 

• AHM. v. FDA Update: The U.S. Supreme Court denied Kansas, Missouri and Idaho’s motion to intervene in the ongoing appeal challenging the legality of the FDA’s regulation of mifepristone. This is an important win, because one of the key arguments on appeal is whether the plaintiff medical practitioners have standing to bring the case at all. And, if the states had been permitted to join the appeal, they could use their own standing arguments to keep the case alive if the Supreme Court finds that the original plaintiffs lack standing. Although the States are not permitted to intervene in the appeal, Judge Matthew Kascmaryk allowed them to intervene in the original case at the District Court level. 

• Missouri and South Dakota: Ballot initiatives to protect certain abortion rights are underway in Missouri and South Dakota. However, both states’ legislatures are taking steps to make it more difficult for the initiatives to pass, even if they have popular support amongst a majority of citizens. 

• Wisconsin: In Wisconsin, Planned Parenthood is asking the State Supreme Court to issue a ruling invalidating an 1849 abortion ban and affirming that abortion is protected under the State Constitution. In 2023, Dane County Circuit Judge Diane Schlipper ruled that the 1849 law does not ban “consensual abortions” but only prohibits the assault of a pregnant person with the intent to kill a fetus. On February 20th, Sheboygan County D.A. Joel Urmanski appealed that ruling directly to the state Supreme Court, asking it to take the case without waiting for a ruling from the appellate court. Whatever procedural route it may take,  the 1849 law will end up before the majority-liberal state Supreme Court this year.
  

Deeper Legal Analysis 

• Alabama: 

• The piece of reproductive health news dominating the headlines since our last Digest is, of course, the Alabama Supreme Court’s unprecedented ruling that frozen embryos are ‘children’ within the meaning of the law. The lawsuit was brought by three Alabama couples, each of whom had cryogenically frozen embryos at the Mobile Infirmary Medical Center. Those embryos were unfortunately destroyed when a patient at the facility entered the embryonic lab, removed several embryos, and dropped them on the floor. The families sued for wrongful death of a minor, and the trial court dismissed the claim on a finding that the statute does not apply to frozen embryos. The plaintiffs appealed, and the State Supreme Court reversed course, making the stunning determination that these embryos are children under the relevant law. 
  
  Throughout the majority opinion, Justice Jay Mitchell repeatedly referred to the embryos as “extrauterine children,” a seemingly made-up term to describe embryos that have not been implanted. In a concurring opinion, the Chief Justice repeatedly invoked his interpretation of Christian doctrine, citing directly to the Bible and relying on theological texts. Despite the Court’s sweeping declarations about the sanctity and protection of unborn life, the effect of the Court’s ruling is to devastate access to in vitro fertilization for Alabamians hoping to grow their families. 
  
  IVF is an extremely complex, financially taxing, and oftentimes deeply emotional process for the families going through it. An IVF cycle usually involves the creation of multiple embryos, of which some will not survive as a natural result of the human fertility process, and others may be frozen to preserve for possible later use or discarded based on their nonviability. Given this complexity, the Alabama ruling calls into serious question how doctors can continue to offer the treatment if the destruction or loss of an embryo is considered the death of a child under state law.  As the lone dissenting justice put it: the ruling “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” Since, the ruling at least three facilities have ceased providing IVF treatment to their patients out of the justifiable fear of facing unpredictable legal consequences.  
  
  The ruling has faced intense and immediate backlash from healthcare providers, politicians, and advocates across the country. In response, Alabama legislators have proposed a series of bills to attempt to protect IVF access. The bills range from providing immunity from civil or criminal prosecution for healthcare related to IVF, to a bill expressly excluding extrauterine embryos from the definition of a child or person. The state Legislature’s rushed efforts to insulate IVF from the Supreme Court’s ruling may mitigate some of the harm that has already been done, but they also highlight the absurdity of the Court’s actions and put a glaring spotlight on the consequences of allowing medical decisions to be made by non-expert judges and legislators. 
  
  Outside of Alabama, the ruling also sounds alarm bells for individuals concerned that other states may follow suit. Amanda Zurawski, a plaintiff in the Texas case challenging the State’s exceptions to its abortion ban, has stated that she will move her frozen embryos out of Texas for fear that Texas may take steps to limit access to IVF. In Florida, lawmakers have halted a Republican-led bill that would have defined fetuses as “unborn children,” amid rising concern over the impact it would have on fertility treatments. 
  
  Advocates have long argued that fertility treatments and access to contraception are the next targets of the anti-abortion movement. The Alabama Supreme Court’s ruling is a stunning validation of that concern. Fetal personhood laws–laws that seek to grant fetuses and embryos full and equal rights under the law–are a powerful way that anti-abortion activists and lawmakers are working to limit access to reproductive healthcare without explicitly passing wildly unpopular bans or restrictions. 

• Oklahoma: 

  • The Oklahoma legislature  has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
    
    One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception.  When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion. 

    Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel. 

    As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
    

• Missouri and South Dakota: 

  • Efforts to enshrine abortion rights into the state constitution in Missouri and South Dakota are being met with anti-choice efforts to stymie the democratic process.
    
    In Missouri, the road to the ballot box is proving to be a long one, with advocates debating what kinds of protections to include in a ballot initiative and anti-abortion lawmakers attempting to block any pro-choice measure from moving forward. The latest opposition comes in the form of a Republican-led effort to make it more difficult to amend the State Constitution. Under current Missouri law, a ballot initiative only needs a majority vote statewide in order to pass. However, the State senate has passed a measure that would require both a majority statewide vote and a majority vote in five of the State’s eight congressional districts. This measure will now go before the Republican-controlled House. If the proposal passes through both chambers of Congress, it will then go to the  voters. Some Republicans are reportedly hoping the proposal will appear on the August ballot and be passed in time to block efforts to enshrine abortion rights into law in November. Missouri’s attempt to raise the threshold for the passage of abortion rights mirrors the unsuccessful attempt by anti-choice lawmakers in Ohio to do the same last year in the face of an abortion ballot initiative. 
    
    Missouri is currently enforcing a total abortion ban. And, on Thursday, February 29th, Attorney General Andrew Bailey announced that he has filed a lawsuit against Planned Parenthood accusing it of ‘trafficking’ minors out of state to obtain abortions, highlighting the urgency of enshrining abortion protections into state law. 
    
    South Dakota advocates are also working to get abortion rights on the November ballot, and they reportedly have already exceeded the 35,000 signatures needed to  do so. Abortion is currently completely banned in South Dakota, with only narrow exceptions for the life of the pregnant person. If passed, the amendment would prohibit the state from interfering with first-trimester abortions, and allow the state to regulate second-trimester abortions if the restrictions were reasonably related to the health of the pregnant person. The measure would permit the state to prohibit abortions in the third trimester. However, State Republicans have called the measure – which effectively adopts the Roe standard – too extreme to be allowed to pass. 
    Republicans in the South Dakota House have adopted a resolution formally opposing the ballot initiative, claiming that this was necessary in order to keep the public informed on the full impact of the ballot measure. House lawmakers have now also passed a bill that would allow petition signers to remove their signature after the fact, despite protections already being in place to protect the signature-gathering process from any improper interference. These efforts are the latest in a series of Republican-led attempts to block abortion ballot initiatives, likely in response to their popular passage in other states.

What else is happening in access? 

• A May trial has been set in a federal lawsuit challenging North Carolina’s requirements that 1) a provider verify the intrauterine location of a pregnancy prior to administering a medication abortion; and 2) that abortions performed after 12 weeks take place in a hospital setting. 

• The Supreme Court will contend with the question of how far state abortion bans may go when it hears oral arguments on April 24 in Idaho v. United States. The case asks whether EMTALA’s emergency stabilization requirements preempt conflicting state abortion bans. 

• The possibility of a federal abortion ban is front and center in the ongoing presidential race. Although he previously did not express a stance, reports indicate that former President Donald Trump favors the passage of a 16-week abortion ban. Trump has consistently touted the overturning of Roe v. Wade as a major accomplishment of his presidency, and there should be no doubt of what a second term would mean for Americans’ reproductive freedoms. 

• Nebraska lawmakers and abortion opponents testified against amending the State’s 12-week abortion ban to include an exception for fatal fetal anomalies. Among other things, opponents of the exception argued that allowing pregnant people to consider abortion would rob them of their “dignity as a mother” and that fetal diagnoses are not always accurate. 

• Tennessee lawmakers have shot down a proposed amendment to the State’s abortion ban that would have allowed children under 13 years of age to obtain abortion care. 

• Dr. Caitlin Bernard is one of the last abortion providers in Indiana, her story, experience, and perspective on the realities of providing abortions in a legally hostile environment are invaluable. 

• Georgia lawmakers have launched a long-shot abortion ballot initiative, attempting to get the issue before voters in November. However, in Georgia, a ballot initiative requires the approval of 2/3 of both the House and the Senate–both chambers are held by Republicans at this time. 

• A Kentucky lawmaker has filed a bill that would amend the State’s ban to allow for abortion in cases of rape or incest in extremely narrow circumstances. 

• Idaho has asked the U.S. Supreme Court to allow it to enforce its gender-affirming care ban, passed in 2023. The law is currently blocked by a District Court order, while the litigation winds its way through the litigation process. 

• Advocates for bodily autonomy are currently fighting a two-pronged battle as they attempt to both overturn abortion bans and also mitigate their harm while the bans remain in place. Molly Duane, senior staff attorney at the Center for Reproductive Rights and counsel in Zurawski v. Texas explains what this strategy looks like. 

• Ballot measure efforts across the country are competing for limited funding, a critical component to success. 

• The Iowa Board of Medicine’s amended proposed rules for its currently-blocked 6-week abortion ban still fail to contend with the complex realities of pregnancy and the very real needs of providers attempting to provide patient care while navigating harsh limitations on their practice. 

• Research shows that mental health outcomes may be worsened in states with abortion bans or severe restrictions in place, likely reflecting the anxiety and lack of autonomy felt by those living under bans. 

• New data reaffirms that telehealth abortion is both safe and effective, despite anti-abortion arguments to the contrary. 

• Lawmakers in West Virginia are pushing to remove an already extremely narrow suicide-risk exception from the state’s current ban on gender-affirming care for minors. 

• Michigan’s Democratic Attorney General will not fight a lawsuit brought to remove the State’s 24-hour waiting period for abortion patients. 

• Despite Washington state’s strong abortion protections, concerns have been raised about how hospital mergers with religious institutions may impact access to care. 

• The Seventh Circuit has allowed Indiana’s gender-affirming care ban to go into effect.

• The Society of Family Planning reports that telehealth abortions now account for 16% of all abortions nationwide, highlighting their critical importance. 
  

REPRODUCTIVE HEALTH DIGEST (2/15/24)

Developments in Abortion, Autonomy, and Access: 

Reproductive rights law and policy are developing rapidly and in incredibly complex ways at both the state and federal levels. In order to accommodate the sheer volume of critical news, we are breaking from our normal Digest structure this week. Rather than taking a deep dive into a handful of key changes to the law, we have instead provided an overview of all of the top stories and legal developments, with the important context included. As we move forward through legislative sessions and an exceptionally important election year, we are constantly striving to find the most effective ways to consolidate and deliver the news that you need in a way that is accessible and efficient, and we always welcome any and all feedback from our readers!

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• Florida:

• Last week, the Florida Supreme Court heard oral arguments about the propriety of ballot summary language for an initiative aimed at enshrining pre-viability abortion rights into the State constitution. Floridians Protecting Freedom, the coalition behind the ballot measure, has collected nearly 1 million signatures in advance of the deadline, exceeding the threshold necessary to satisfy state requirements. However, Florida Attorney General Ashley Moody has asked the state Supreme Court to block the initiative, arguing that the language used is unclear and too confusing to be put before the voters. 
  
  During oral arguments, the scope of the question on review was a narrow one: whether or not the proposed ballot summary was a fair and clear summary of the contents of the ballot measure itself. In other words–will the voters clearly know what they are voting for or against? The extremely conservative court appeared aware of their limited role in the question before them, repeatedly emphasizing that it was not one of ideology, but one of linguistic clarity. Whether or not the Justices feel abortion should be protected in the state of Florida does not enter the equation for the purposes of this particular fight. 
  
  The Justices seemed skeptical of the State’s argument that the ballot language is unclear. For example, although the Justices repeatedly used language borrowed from the anti-abortion movement, the Chief Justice also stated that “the people of Florida aren’t stupid, they can figure things out.” Chief Justice Muniz also referred to the initiative as “wolf that comes as a wolf,” rather than a wolf in sheep’s clothing, simultaneously indicating his negative feelings about abortion and his likely view that the ballot summary fairly represents the initiative’s contents. We will continue to report on this story as it develops. 
  
  Florida is one of several GOP-led states where advocates are attempting to get abortion on the ballot in 2024. The outcome of Florida’s initiative will impact abortion politics and access both within the state and throughout the rest of the country. 
  

• Missouri: 

• Missouri Republicans have blocked efforts to amend the State’s total abortion ban to include an exception for rape or incest. While some lawmakers seek to mitigate the harm of the existing ban, others stand by it in its current form. During debate over the proposed amendment, Republican state Senator Sandy Crawford explained her opposition by stating that while rape can be mentally taxing, “God is perfect” and “does not make mistakes.” 
  
  Lawmakers also debated Democratic Senator Doug Beck’s proposal to permit abortion for victims under 12 years old. This led to a heated debate during which Republican Senator Bill Eigel suggested that the amendment would permit 1-year-olds to obtain abortions. Of course, 1-year-olds cannot become pregnant, but these are the kinds of arguments that anti-choice legislators are making to justify their positions. 
  
  Debate about the scope of Missouri’s abortion laws is happening against the backdrop of efforts to enshrine abortion in the State’s Constitution, and counter-efforts to make doing so more difficult, including Missouri Right to Life setting up a ‘snitch line’ for citizens to report signature gatherers. 

• South Carolina: 

• A South Carolina woman has filed a lawsuit against the State, challenging its ban on abortion after detection of a fetal heartbeat. The State’s abortion ban prohibits abortion after “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart.” ‘Fetal heartbeat’ bills have been criticized for legislating based on medically inaccurate representations of when in pregnancy the human heart forms and begins to ‘beat.’ 
  
  Plaintiff Taylor Shelton argues that the language of South Carolina’s law is ambiguous because it is unclear whether it refers to the first detectable electrical activity, which occurs around six weeks, or the formation of the heart’s chambers, which does not occur until roughly nine weeks gestational age. Shelton was forced to travel out of state to obtain an abortion, because doctors in the state applied a narrow construction of the law and would not provide an abortion after 6-weeks. She urges the Court to resolve the ambiguity in her favor and find that the current law permits abortion until nine weeks into pregnancy. 

• Tennessee: 

• K Monica Kelly has joined other Tennessee women in directly challenging the State’s abortion ban, after being forced to travel out of state to obtain access. When Kelly learned that she was pregnant with her second child, she and her husband were initially thrilled; however, after a series of devastating fetal diagnoses, they made the difficult decision to terminate the pregnancy. As a result of Tennessee’s total abortion ban, Kelly was unable to obtain treatment in her home state. 
  
  Kelly’s experience navigating Tennessee’s abortion laws spurred her to join six other women in challenging the State’s ban, arguing that it is too narrow and that providers should be permitted to use their good faith medical judgment to determine when an abortion is necessary to treat a “critical or emergent health condition.” Similar cases brought directly by women who were denied abortions are being litigated in Idaho and Texas. 

• AHM v. FDA: 

• As the Supreme Court is set to hear oral arguments in the case challenging the legality of mifepristone for medication abortion, two key studies relied upon by lower courts have been retracted by the scientific journal where they first appeared. 
  
  Sage Publications retracted the studies after two subject matter experts conducted independent peer reviews in response to concerns raised by a reader about the studies’ validity and scientific rigor. The reviewers ultimately found that the studies suffered from fundamental problems that called into question their conclusions, which showed rates of mifepristone complications far higher than those reported in other studies. They also found that the authors of the studies failed to disclose existing conflicts of interest, despite the authors’ affiliations with anti-abortion groups that expressly advocate for the restriction of mifepristone and abortion generally. Although these studies were relied upon by the lower courts for the determination that the plaintiffs have suffered harm, the impact of the retraction on the ongoing litigation is likely to be minimal. The Supreme Court is not obligated to take the retraction into consideration, and the current Court has shown its willingness to rely on studies and voices that support its desired conclusion, to the exclusion of more credible data. 
  
  Oral argument in this case will be heard by the Supreme Court on March 26th. In advance of arguments, a multitude of groups and coalitions have come out in support of access to mifepristone, including a coalition of 24 attorneys general from across the country. The coalition’s brief argues that the Fifth Circuit’s ruling placing restrictions on access to the drug contradicts decades of data showing its safety and efficacy, and that limiting access to mifepristone goes against the public’s interest. 

• New Hampshire: 

• The New Hampshire House voted down a proposed bill that would have restricted abortion after 15 days, a point in pregnancy when it is all but impossible to know whether or not conception has occurred. Although the bill was unlikely to advance past the House, it is still important to watch what kinds of bills are being proposed. Proposed legislation reveals what lawmakers would be willing to do and pass, if they are able to garner the political capital to do so. The political makeup of state legislatures can change in any given election cycle, and the viability of such proposed legislation changes along with it. 
  

• West Virginia:

• GenBioPro, the manufacturer of generic mifepristone, has filed an appeal with the Fourth Circuit, challenging West Virginia’s total abortion ban. At present, West Virginia bans abortion at all gestational ages, with extremely narrow exceptions, and it prohibits the use of medication abortion outside of those exceptions. 
  
  GenBioPro is urging the Court to overturn this prohibition on the grounds that the State’s law is preempted by federal regulations on the use of mifepristone. GenBioPro argues that the drug’s safety record is well documented and scientifically sound, and that West Virginia’s imposition of additional restrictions over what federal law requires violates the Constitution’s mandate that federal law act as the supreme law of the land. The outcome of this case will likely inform other states’ decisionmaking about whether to specifically limit access to medication abortion. And, the fight over access comes as the Supreme Court prepares to hear oral arguments in a case that will determine the future availability of the drug. 

• Fetal Personhood Laws: 

• Despite popular support for abortion rights nationwide, lawmakers are continuing to propose legislation limiting reproductive freedom, including fetal personhood laws. Fetal personhood laws seek to define life as beginning at fertilization and endow fetuses and embryos with all the rights and protections of a person. They can be used as a backdoor way to restrict reproductive freedom and change the law on abortion by changing how personhood is defined. 
  
  In Kansas, lawmakers have proposed a bill that would allow pregnant people to claim child support throughout pregnancy, from the time of conception. To accomplish this, the law would change a Kansas family law statute to include an embryo at any gestational age in the definition of a child. Supporters of the bill purport to be interested in providing support systems for pregnant people. However, the reality is that fetal personhood laws intentionally pave the way for future restrictions on bodily autonomy and do so without drawing the public backlash created by explicit abortion bans.
  
  Kansas lawmakers are not alone in their push for fetal personhood. Iowa lawmakers proposed a bill last week that would make causing the death or serious injury of an “unborn person” a class A felony, equal to first-degree murder in the State. Although the crime of harming a pregnant person is horrific, the bill would enshrine fetal personhood into state law and define an “unborn person” as having equal rights in the Iowa code. Prosecution of crimes against pregnant people can be (and is) accomplished by prosecuting the crimes on their own terms, without using the stories of victims as cover to pass anti-choice laws. 
  
  In Missouri, lawmakers have proposed their own version of a fetal personhood law. The bill would require a court to consider custody disputes over frozen embryos in favor of the party most likely to use the embryos to create a child. This kind of bill raises concerns over applying legal standards like the ‘best interest of the child,’ which is typically used in custody disputes, to unborn embryos. It also creates issues around consent by allowing a court to grant custody of an embryo to one parent, without the other genetic parent consenting to the use of that embryo to create a child. 
  

• Jackson, Wyoming: 

• Jackson, Wyoming has an abortion provider again–at least for the time being. At present, abortion is legal in Wyoming until ‘fetal viability,’ while the State’s attempted total abortion ban is on hold due to litigation. Despite the legality of abortion, however, providers who are willing and able to perform the procedure have been sparse. Dr. Katie Noyes’ story highlights why. 
  
  Although Dr. Noyes was willing and able to provide abortions in accordance with state law, her hospital told her last December that she could not provide medication abortions due to legal concerns. Dr. Noyes explained that the legal team had concerns over its doctors medical licensure or potential retroactive prosecution if the State’s total abortion ban was to go into effect. However, Dr. Noyes pushed back, reminding her hospital that the care that she would provide is absolutely legal in Wyoming at this time. As a result of her advocacy, her hospital reversed course, permitting her to provide care. At a moment when state abortion laws are constantly changing and purposely opaque, the responsibility to advocate for access all too often falls on the shoulders of individual providers. Clarity from lawmakers and support from hospital decision-makers is desperately needed. 
  

• Virginia:  

• In Virginia, where abortion is currently permitted until roughly the third trimester, lawmakers voted down a bill that would have banned abortion in all cases except to save the life of the pregnant person. Virginia currently has a Republican Governor who openly supports the passage of a 15-week abortion ban. However, last year Virginia Democrats managed to retain control of the Senate and flip control of the House. This retention of control allowed them to safeguard abortion rights in the State, a key access point for patients in the South. 
  

• Michigan: 

• Although Michigan protects abortion under the State’s Constitution, plaintiffs in the state have brought a lawsuit to challenge medically unnecessary laws that are still on the books, including 24-hour waiting periods and mandatory counseling requirements. The lawsuit was filed on Tuesday on behalf of the Northland Family Planning Centers and Medical Students for Choice. 

• New Study on the Impact of Abortion Bans on ObGyns: 

• In Wyoming, litigants challenging the State’s abortion ban have submitted a new study about the impact of abortion bans on ob-gyns. In addition to highlighting the negative impact of bans on the quality of patient care, the study also identified personal impacts on providers. These impacts included feelings of fear and worry over prosecution or loss of licensure, and consideration of moving out of state in order to continue practicing medicine. The study provides important insight into how restrictive legislation affects medical practitioners and their ability to provide the care that they are trained to give. 

• Location Data Shared: 

• An investigation conducted by Oregon Senator Ron Wyden revealed that a location data company tracked visits to 600 Planned Parenthood locations and provided that data to an anti-abortion ad campaign. Although location tracking for the purpose of targeted advertising is nothing new, the scope of this particular campaign is significant. And, data privacy for individuals seeking reproductive healthcare has taken on new importance as anti-choice states seek to aggressively investigate and curtail efforts to obtain abortion services and information. 

REPRODUCTIVE HEALTH DIGEST (2/1/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest is full of important state-level news, as legislative sessions take shape, litigation progresses, and ballot initiatives advance across the country. There is a lot to cover, particularly in our ‘Other News in Access’ section, so please read on for the reproductive health news that you need to know. As a quick housekeeping note, starting this week we will be switching up our normal Digest schedule to publication on Thursday rather than Friday. From all of us here at L4GG, thank you for your continued readership and support of our work! 

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Legal Changes at the State Level: 

• Brief Overview: 

  • Alliance for Hippocratic Medicine v. FDA: The U.S. Supreme Court has set oral argument in Alliance for Hippocratic Medicine v. FDA for March 26, 2024. The outcome of this case will impact the availability of medication abortion nationwide. The DOJ is urging the Court to preserve access, pointing to the drug’s excellent safety record, while the anti-abortion groups behind the lawsuit argue that medication abortion is dangerous and its use should be curtailed and highly regulated. 

• Wisconsin: Wisconsin lawmakers have proposed a referendum to institute a  14-week abortion ban in the state. At present, abortion is legal until around 20 weeks gestational age. 

• Abortion Trafficking in Oklahoma and Tennessee: Lawmakers in both Oklahoma and Tennessee have introduced abortion trafficking bills, following in Idaho’s legislative footsteps. 

• North Dakota: A North Dakota judge has declined to block the State’s total abortion ban for cases where a physician uses their good faith medical judgment to determine that an abortion is necessary to avoid high-risk complications.  The plaintiffs in the case argue that the ban’s exceptions are too narrow and do not comply with the State Constitution.
  

Deeper Legal Analysis 

• Wisconsin: 

• Current Wisconsin law permits abortion until around 20 weeks gestational age; however, state lawmakers have proposed a referendum to institute a  14-week ban in the state. The measure has been passed by the State Assembly and will now go to the Republican-controlled Senate for approval. It will then go before Governor Tony Evers, who has vowed to veto it, stating that the people of Wisconsin have already made their views on abortion clear. If, however, the measure makes it past a veto, it would be voted on by the citizens during April elections, requiring a majority vote to pass. 

• The proposed bill would prohibit abortion after 14 weeks absent a narrowly defined “medical emergency.” It would also mandate that in cases of medical emergency after 14 weeks, the physician must terminate the pregnancy in a manner that provides the unborn child the greatest likelihood of survival, unless that method imposes increased risk to the pregnant person. In other words, even in cases where the fetus is not even close to viability, a provider could be forced to induce labor or perform a c-section rather than provide a termination. 

• As a reminder, immediately after Dobbs, Wisconsin Republicans began arguing for enforcement of a total abortion ban from 1849. A state judge ruled last year that the 1849 law only applies to feticide and does not apply to consensual abortions, giving abortion providers in the state the legal protection necessary to begin resuming services for the first time in over a year. Additionally, last year Wisconsinites elected Justice Janet Protasiewicz to the State’s high court–Justice Protasiewicz made her support for abortion rights clear on the campaign trail. Justice Protasiewicz’s addition to the court gave liberals a 4-3 majority at a time when abortion-related litigation is making its way to the Justices’ desks. 

• Abortion Trafficking in Oklahoma and Tennessee: 

• Oklahoma and Tennessee have joined Idaho in introducing abortion trafficking laws aimed at prohibiting the transport of minors to another state in order to obtain an abortion. We have discussed these kinds of bans a great deal in this Digest, but they are a hallmark of post-Dobbs anti-abortion legislation and litigation. With the fall of Roe, state legislators are empowered to pass increasingly draconian legislation regulating access to reproductive healthcare, and litigation over abortion rights has shifted to the previously uncharted territory of interstate travel. 

• Although Tennessee and Oklahoma both currently ban abortion at all gestational ages, legislators in the states are seeking to enforce those restrictions across state lines. Oklahoma’s proposed law would criminalize aiding a minor in obtaining an abortion in another state, regardless of whether abortion is legal in that state or whether the minor consents to the travel and the procedure. The bill, which carries a potential prison sentence of 2-5 years, is written in broad language intended to intimidate anyone who would otherwise assist a minor in accessing abortion care. Tennessee’s proposed law would similarly bar anyone other than a minor’s parent or legal guardian from helping them cross state lines for an abortion. In Tennessee, those found in violation could face up to 15 years in prison. So-called abortion trafficking laws don’t just impact trusted adults who might help a minor family member or friend–they also take aim at abortion funds. These funds are an absolutely critical resource in ban states, as individuals are forced to travel long distances, often requiring time off work and away from their families, in order to safely obtain reproductive health care. 

• Although the enforceability of these laws remains an open question, the goal is that the threat of enforcement alone is sufficient to stop would-be helpers from stepping in. Americans have a constitutional right to travel between states– ‘abortion trafficking’ bills infringe on that right and invent a criminalization mechanism for otherwise legal conduct. Idaho’s identical law is temporarily halted by a state court that found that the state is not free to simply invent the crime of abortion trafficking; the final outcome of that case has not yet been handed down. Its outcome will be a bellwether for how these laws may fare in other states seeking to pen their citizens in and deprive them of their right to travel to access legal care. 
  

• North Dakota: 

• In North Dakota, a judge declined to block enforcement of the State’s abortion ban for emergency cases, as determined by the provider’s good faith medical judgment. At present, North Dakota is enforcing a total abortion ban with extremely narrow exceptions to preserve the life of the pregnant person or to prevent a serious health risk. As with many state abortion restrictions, the law is written in broad non-medical terms that leave providers with little to no clarity about the parameters of permissible care. 

• In the present case, the plaintiffs argue that the ban’s exceptions are too narrow to comply with the State Constitution, and that the law does not provide doctors with a discernible standard for when they can safely intervene without incurring legal risk. The North Dakota Supreme Court previously blocked another total abortion ban–the State’s trigger ban–finding that its failure to include exceptions for the life or health of the pregnant person was unconstitutional. The question now is how far do the State’s constitutional protections extend to protect pregnant people. 

• The failure of abortion-restrictive states to provide clear or workable exceptions to their bans has led to widespread confusion across the country and deterred physicians from providing best-practice care. Litigation over the scope of States’ obligations to preserve the life or health of the pregnant person has been one way that advocates have sought to provide clarity. The North Dakota case is progressing at the same time as the U.S. Supreme Court is set to take up the question of whether the Emergency Medical Treatment and Labor Act (EMTALA) requires providers to perform abortions in emergency situations regardless of state bans. Although the stakes and the legal arguments in the cases are distinct–one centers on North Dakota’s Constitution, and the other on the parameters of a federal law – both lawsuits are responsive to the healthcare disaster created by unclear and unsafe abortion laws.  

What else is happening in access? 

• Abortion politics will be front and center during the 2024 election cycle. Experts are weighing in on how an anti-abortion executive branch could use its enforcement powers to decimate abortion rights, without the need for congressional approval or an outright abortion ban. President Biden and Vice President Harris have announced new plans to increase protections for reproductive rights, including abortion and contraception. Meanwhile, it seems that anti-choice Republicans are responding to the political backlash to Dobbs by deleting references to their position on abortion from their websites. 

• Idaho has one of the most severe abortion bans in the country–notable for its lack of exceptions for the health of the pregnant person or in cases of fetal anomaly. Now, an Idaho lawmaker has introduced a bill to also remove the rape or incest exception. If passed, this would render abortion only available to save the pregnant person’s life. 

• A new study reports that approximately 65,000 rape-related pregnancies have occurred across the 14 states with abortion bans in place. Even in states that have exceptions for rape or incest, the law often requires the victims to report the crime to law enforcement. And in practice, providers are wary of providing the care for fear of legal liability. 

• Washington state is preparing pharmacists to prescribe medication abortion, in a bid to improve access and alleviate the immense burden faced by abortion clinics in states where it remains legal. 

• Democrats in Kentucky unveiled a bill seeking to roll back Kentucky’s abortion ban; however, with the current Republican majority in the state legislature, passage is extremely unlikely. Proponents of the bill hope to galvanize activists in the state to continue to push for change. 

• The Iowa legislature has advanced a bill to ease requirements for state funding of ‘pregnancy resource centers.’ These centers have long been criticized for misleading tactics aimed at dissuading pregnant people from seeking an abortion rather than supporting those who wish to remain pregnant. In anti-abortion states, funding of these centers is a common strategy for lawmakers who wish to appear supportive of pregnant people while still legislating against reproductive rights 

• A group of transgender veterans have filed a lawsuit asking the Department of Veteran Affairs to include gender-affirming surgery in its medical health benefits for vets. Notably, the Department currently covers most non-surgical aspects of gender-affirming health care. 

• Four LGBTQ+ advocacy organizations have petitioned the U.N. over Texas laws that target the LGBTQ+ community. 

• The Ohio legislature overrode Governor DeWine’s veto of the state’s gender-affirming care ban, throwing the future of transgender adults and minors in the state into uncertainty. 

• Kate Cox, the Texas woman who was forced to flee the state to obtain an abortion after a devastating fetal diagnosis, has been invited to the State of the Union. 

• The Nebraska legislature has not reintroduced the 6-week abortion ban that it attempted to pass in the prior legislative session. 

• Abortion rights advocate Jessica Valenti wrote a critical piece about how state-sanctioned and misleading anti-abortion rhetoric is making its way into schools. 

• An Oklahoma lawmaker introduced a resolution that would enshrine in the state constitution that all rights associated with personhood begin at conception. Fetal personhood bills have popped up all over the country and could affect the availability of fertility treatments, the family law system, the criminalization of pregnancy, various tax provisions,  and of course–abortion and other aspects of reproductive health. 

• A recent investigation has revealed that all 8 of the major pharmacy chains in the U.S. have turned over prescription records to law enforcement without a warrant, as the stores do not require employees to run records requests past their legal departments prior to complying. This poses a serious risk to patient privacy at a time when the threat of investigation or criminalization for those seeking care is all too real.
  

Issue of the Week: Ballot Initiative Updates 

Ballot measures seeking to enshrine or remove protections for reproductive healthcare are underway across the country. While it is impossible to report on all of the movement while still keeping this Digest reasonably concise, we have covered some of the major highlights below, and we will continue to keep you updated as things progress. 

• Arkansas:

• Arkansas’ Attorney General has approved language for a proposed ballot measure that would prohibit the state from restricting abortion prior to 20 weeks LMP, with exceptions for lethal fetal anomaly, rape or incest, and the life or health of the pregnant person. Proponents of the measure can now begin collecting signatures ahead of the 2024 election. A win for abortion rights in a solidly red state like Arkansas would be a huge win for the reproductive rights movement in the South. 

• Nevada: 

• A Nevada judge issued a ruling approving a proposed ballot initiative that would add protections for abortion rights until 24 weeks gestational age to the State Constitution. The measure can move forward to the signature gathering stage. Although abortion is already legal through 24 weeks by statute in the state, enshrining it into the constitution would cement those protections and remove them from the whims of changing legislatures. 

• Florida: 

• The Florida Department of State has verified that a ballot measure seeking to protect “pre-viability” abortion rights has received enough valid signatures to be put on the ballot this fall. However, the State’s highly conservative Supreme Court must also weigh in on the propriety of the proposed amendment’s language. The Court will hear oral arguments next month. Meanwhile, taking a cue out of Ohio’s book, Florida Republicans are trying to raise the threshold to pass a constitutional amendment from 60% to nearly 67%. 

The State’s Supreme Court is also currently considering the constitutionality of a 15-week ban passed in 2022; the outcome of this case will determine whether Governor DeSantis’s six-week ban will pass into law. Floridians' efforts to protect abortion rights take on particular importance as state lawmakers continue to advance restrictions on abortion including introducing a new total abortion ban and attempting to pass fetal personhood laws. 

• Montana: 

• In bad, but not unexpected, news out of Montana, the State’s Attorney General has struck down a proposed ballot initiative protecting abortion rights as legally insufficient. Montanans Securing Reproductive Rights has petitioned the State Supreme Court to allow the ballot measure to advance towards the November ballot, arguing that the Attorney General’s comments exceeded his authority. The measure would prohibit the state from restricting abortion “pre-viability.” 

• Missouri:

• In Missouri, efforts to get abortion before the voters have hit yet another roadblock. Anti-abortion groups have introduced a plan that would require a ballot initiative to win a majority in 5 of the State’s 8 congressional districts, rather than a simple statewide majority. With the State’s districts gerrymandered to favor Republicans, passage of this proposal could erect a significant barrier to any abortion ballot measure. Attempts to keep abortion off of the ballot by subverting direct democracy are not new, but they are alarming and will impact trust in the democratic process far beyond the issue of abortion alone. 

• Mississippi: 

• In Mississippi, House Republicans have approved a resolution that would revive the State’s ballot initiative process with an express exclusion prohibiting citizens from bringing proposals relating to abortion. In other words, if the resolution passes it would deprive Mississippians of their ability to utilize direct democracy to protect abortion, while allowing all other issues to be raised. Critics have lambasted the move as substituting the judgment of state legislators over the voices of state residents. Certain proponents of the resolution have expressed the somewhat baffling opinion that voters should not be allowed to express their will on abortion because Mississippi is the state that initiated the case that overturned Roe.